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“Farewell to Unjustified Enrichment?” – A Common Law Response

Document Cited in Related
Vincent
Pages326-337
Date01 September 2016
Published date01 September 2016
DOI10.3366/elr.2016.0362
Author
INTRODUCTION

In a bold and important paper, Nils Jansen has suggested that the unified law of unjustified enrichment may be on the rocks.1 It has been realised for a number of years that German or German-like versions of this law must in practice be divided into distinct functional units (the Wilburg/von Caemmerer typology). Jansen now contends that the divisions are in fact more fundamental still, and further analysis can only lead to the dissolution of unjustified enrichment. The various units taken to comprise unjustified enrichment do not belong together: “large parts of the law of unjustified enrichment are no longer treated as freestanding non-contractual obligations, but rather as remedies in contract law. It thus seems to be time to say farewell to the idea of a unified law of unjustified enrichment”.2

Jansen's paper is for the most part modest in jurisdictional scope, the analysis being limited to the German-speaking legal systems (Austria, Germany and Switzerland)3 – and there are some “fundamental differences” even between those systems.4 Neither does he urge that other jurisdictions should necessarily follow the German lead.5 Towards the end of his paper, Jansen suggests that none of what he has said has relevance to modern Common Law systems, though it can shed some light on their history; and in particular “[t]he purpose of this paper is not to support voices criticising the English notion of unjust enrichment”.6 This is a surprising turn, as Jansen's analysis – that the restitutionary subject matter is best divided into distinct units, few if any of which are best explained solely by the theory of unjust(ified) enrichment – is strikingly similar to the visions advanced by a number of Common Law scholars, including Patrick Atiyah,7 Joachim Dietrich,8 Margaret Halliwell,9 Ian Jackman,10 Peter Jaffey,11 Dan Priel,12 Samuel Stoljar,13 and Peter Watts.14 These writers are hardly unanimous on how the subject is to be divided, but with Jansen they agree that division is appropriate. Jansen refers only to one Common Law critic by name, yet even there it is notable that he cites only papers relating to methodology (which certainly have little connection with his thesis)15 rather than those relating to the mapping and distribution of the subject (which have definite relevance).16 And it is curious that Jansen refers only to England, when in fact the debate encompasses much of the Common Law world.

There is also an unfortunate suggestion that Common lawyers who oppose the current English orthodoxy are not much interested in unifying concepts.17 This seems to be merely the same hasty argument so often used in this area, that academics may be divided into those who believe in order and those who believe in chaos, and that the latter sort (who may be identified by their horns and their forked tails) are to be shunned. In reality, all sensible academics admit that intellectual order is good but is not the only good, and that proper legal analysis involves trade-offs between the various goods involved: treating like cases alike is one principle of the law, not its only principle. The goal is to seek the right balance. Imposing unification on the law has a significant price – in fairness, in flexibility, in practicality, in fidelity to court rulings – and some think the price is too high. The question is therefore whether the extremely high level of abstraction and apparent clarity urged by the theory of unjust(ified) enrichment is desirable or even attainable.

In this paper, I suggest that Jansen should not sell his own thesis short. Much of it, with appropriate adjustments to terminology, can equally be applied to Common Law systems. While of course the language and the doctrine is different, the same broad thesis can be (and, indeed, has been) suggested for the Common Law: that the order and clarity apparently presented by theories of unjust enrichment is to a great extent illusory; and that the subject's break-up will be driven by the sentiment that abandoning the notion of unjust enrichment yields more order than clinging on to it.

 JANSEN'S THESIS

Broadly speaking, the first half of Jansen's paper is historical. The German law of unjustified enrichment was formed from the fusion of two established, indeed ancient, theories of liability: restitutio (a claim for the return of benefits derived from another's property) and condictio (a claim for the return of what was received without an adequate legal basis or justification). These claims had very different origins – restitutio came from Catholic theology, the condictiones from Roman law – and while they had often seemed to deserve fusion at a theoretical level, attempts to do so were initially unsuccessful. In the nineteenth century, however, Savigny and others combined the two into the single idea of unjustified enrichment, which inspired (amongst other things) the relevant provisions of the German Code. These provisions have then been applied in a wide variety of situations, which most Germanic lawyers now accept can be summed up in the famous Wilburg/von Caemmerer typology. This identifies a number of distinct actions, principally Leistungskondiktion (benefits transferred under failed transactions), Eingriffskondiktion (appropriation of another's assets), Rückgriffskondiktion (discharge of another's debt) and Verwendungskondiktion (improvement of another's property).18

However, the fit between restitutio and condictio was never very tight, Jansen argues, and it is now becoming apparent that “scholars and courts have in fact disentangled – often...

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