<p>The move away from a general course on Scots law undoubtedly had many advantages, and few in the Scottish Universities would propose a return to the old curriculum. However, it does have the disadvantage of encouraging a degree of isolation between the various subjects, which can, in turn, discourage study of topics which range across a number of fields or which fall outside the major categories. In short, it can lead to a neglect of the general part of private law.</p>
<p>The development of sophisticated analysis of the general part in private law is one of the great contributions which German scholars have made to the Western legal tradition. The work under review is a further contribution to this corpus. The core of the book concerns an argument about the main rules on unjustified enrichment in Germany: § 812 BGB (which essentially covers the <italic>condictio indebiti</italic>, the <italic>condictio ob causam finitam</italic> and the <italic>condictio causa data causa non secuta</italic>) and § 817 BGB (which covers the <italic>condictio ob turpem vel iniustam causam</italic>) but discussion ranges across theories of juridical acts, the law of agency and discharge of obligations by performance.</p>
<p>Thomale's main contentions are twofold. First, performance is a juridical act composed of two elements: carrying out the relevant action and making a declaration of will (<italic>Tilgungsbestimmung</italic>) which identifies the obligation (if any) which the action is intended to fulfil. Secondly, that this understanding of performance applies to both the provisions on discharge of obligations by performance (§§ 362 ff BGB) and to the enrichment rules.</p>
<p>The <italic>Tilgungsbestimmung</italic> serves to identify the relevant <italic>causa</italic> for the purposes of enrichment: it points to a putative claim (<italic>Forderung</italic>) and if that claim is in fact non-existent or otherwise ineffective, then the enrichment rules will kick in to reverse the performance. One consequence of this analysis is to bring the cases addressed by §§ 812 II and 817 BGB within the ambit of § 812 I BGB: i.e. the development of a single principle which covers all cases of enrichment by deliberate conferral. As a result, it tends to render the former provisions redundant.</p>
<p>This approach will remind Scots lawyers of the general absence of basis analysis which developed from <italic>Shilliday v Smith</italic> <a href="https://vlex.co.uk/vid/shilliday-v-smith-806844153">1998 SC 725</a>. However, it has the capacity to take matters further than a simple absence of basis rule. Identification of performance as a juridical act suggests that it should be understood as an exercise of private autonomy. The...</p>
