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Farewell to Unjustified Enrichment?

Document Cited in Related
Vincent
Author
Published date01 May 2016
Pages123-148
DOI10.3366/elr.2016.0339
Date01 May 2016
INTRODUCTION

In a recent article, Professor du Plessis suggested that South African enrichment lawyers might draw more appropriate stimulation from Civilian learning than from the intense debates in the Common Law world.1 This inclination towards the Civilian law of unjustified enrichment also seems to be particularly well-established in Scotland, where authors such as Niall Whitty or Robin Evans-Jones quite openly acknowledge their debt to Civilian theory.2 One reason for taking this perspective of looking beyond the Common Law is the Civilian origins of both the South African and Scottish laws of obligations. The purpose of this paper is, hence, to make accessible to an English-speaking audience the historical background and present state of unjustified enrichment theory in the German-speaking Civilian legal systems, i.e. in Austria, Germany, and Switzerland.3 I do not think, of course, that other Civilian or mixed systems should necessarily follow the example of German doctrine. My point is, more modestly, that something might be learned from the experiences in legal systems in which the institution of unjustified enrichment has a comparatively long and lively tradition, but nevertheless continues to be a fast-developing part of the law.

 THE HISTORICAL FOUNDATIONS OF UNJUSTIFIED ENRICHMENT

A major challenge for legal theory in general, and unjustified enrichment theory in particular, is the delineation and definition of doctrinal categories. There is a tension between the elegance of abstraction and the practical value of functional and contextual responsiveness. Abstract concepts help to relate otherwise independent institutions and rules to each other and thus may shed new light on the law. Having such categories in a legal system may lead to fundamentally new insights and understanding. A category applying in fundamentally different contexts such as torts, property law, and contracts, needs however to be kept responsive to the different functions and contexts of those many fields of the law.4 It may turn out that the concept assumes different meanings in different contexts, and such ambiguities in meaning may eventually result in a general category breaking apart. The history of the Civilian law of unjustified enrichment provides an example of such a development.

It is well known, even in the English-speaking world, that the doctrinal and normative structure of the Civilian law of unjustified enrichment underwent fundamental and parallel changes during the course of the twentieth century.5 During the last few decades, however, it has increasingly become apparent that what was once the “modern Civilian approach” to this field of the law6 ultimately leads to its dissolution. The reason is the fundamental functional and doctrinal differences between different claims collected under the heading of unjustified enrichment: 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.

Despite its residually Roman terminology (condictiones; Kondiktionen), the Civilian law of unjustified enrichment can barely be understood as a Roman institution. Indeed, Roman lawyers did not know of “unjustified enrichment” as a separate legal category. The modern rules and their conceptual substance result from nineteenth century Pandectist theory. However, the codification of this theory in the general clauses of § 812 (1) German BGB (1900) and Article 62 Swiss OR (1883) turned out to be premature, as the discussions surrounding this theory had not yet come to a conclusive end. During the twentieth century, it was felt that the rules laid down in those general clauses did not work properly. A famous expert opinion written for the German legislature in 1981 thus began with a long list of “inconsistencies in the (then) current law (Ungereimtheiten der gesetzlichen Regelung)”;7 today, few German jurists would deny that this was a fair evaluation. Those inconsistencies result ultimately from the fact that the Pandectists had interwoven into their theory of unjustified enrichment two fundamentally different legal conceptions that do not fit well with one another. The modern civilian law of unjustified enrichment thus grows from two intellectually separate roots.8

The Roman <italic>condictiones</italic>

Only one of those two elements is rooted in the Roman condictiones: it is the idea that the debtor has to return what he received without sufficient legal basis (causa; Rechtsgrund). Yet those restitutionary condictiones were never regarded as enrichment claims in the modern sense of the word until the very end of the eighteenth century:9 they were not understood as being based upon an unjustified enrichment, neither were they limited to the actual enrichment on the debtor's side.10 The Roman jurists focussed instead on the original transfer. They gave a restitutionary condictio to the claimant in cases where they felt the defendant should be obliged to return what he had received from the former. Originally, however, the Roman condictio had not even been a restitutionary remedy. Rather, it was established as an action to enforce promises for stipulations for a certain amount or certain things (stipulationes certi).11 Of course, such an action had to be strict, in that the defendant could not claim that he did not have the thing he had stipulated for; there was never a defence on the basis that the defendant was no longer enriched.12 Modern jurists might therefore wonder how this action could eventually have become the basis of the modern law of unjustified enrichment.

The decisive factor making this development possible was probably the action's formula. This formula was abstract, in that it did not mention a specific cause of action. The condictio could thus be used in contexts quite different from those for which it had been designed originally, such as cases where the claimant sued to recover an informal loan (mutuum) or things which had been stolen (condictio furtiva).13 Nevertheless, in view of its strict nature, the action's scope of application remained limited. Besides its application in the field of contractual claims and theft, the most important were instances of undue or failed transfers (condictio indebiti, condictio ob rem, etc).14 The Roman jurists never acknowledged a condictio genuinely based on an infringement upon another person's rights;15 only during the twentieth century did this claim find its place in the Civilian law of unjustified enrichment.16 Indeed, such a claim would have looked quite strange within the intellectual structure of Roman law. Roman jurists did not conceive of rights as reasons for legal remedies,17 and the strict consequences of the condictio are quite inappropriate in typical cases of innocent infringements upon other persons' property. For the same reason, Roman jurists did not grant a condictio for claims for expenditure made; where they found it appropriate to allow the creditor to recover expenses made, they instead based it on the negotiorum gestio.18

What then, it might be asked, did Roman and ius commune jurists mean when they described the condictiones as an expression of a natural law principle against unjust enrichment? Obviously they had ideas in mind which significantly differed from modern conceptions of liability for unjustified enrichment. Their concept of unjustified enrichment referred to cases of undue or failing transfers. In the context of the condictio, they never thought about the abstract idea of siphoning off an unjustified enrichment.19 The unjustified enrichment as such was not seen as a causative event triggering a condictio. Indeed, civilian authorities explained the condictiones on the basis of concepts such as real contracts, fictional contracts, quasi-contracts, or quasi-delicts.20 Those concepts were intellectually quite different from, and unrelated to, the idea of unjustified enrichment.

 The doctrine of restitution

The second element of the Civilian concept of unjustified enrichment is the idea of a duty to return all enrichment received out of another person's property. This idea stems from the theological doctrine of restitutio, and thus from the theological tradition of natural law. According to Catholic theology, a restitutio was a necessary requirement for the sacrament of penitence. No sin could be forgiven, so it had been taught since Augustine, unless the sinner returned what he had taken from another person. During the fifteenth and sixteenth centuries, this theological doctrine of restitutio was turned into a natural law theory of corrective justice. Its purpose was primarily to explain moral duties of compensation for loss suffered by another person.

According to the sixteenth century doctrine of restitutio, all such duties rested on the creditor's property right (dominium).21 They could arise, of course, where the goods had been credited to the debtor, where the debtor had taken them, or where he was responsible for damage done to them – this was the restitutio ratione acceptionis. Yet such duties did not necessarily presuppose a contractual obligation or fault on the debtor's side. The debtor was likewise under a duty of restitution if he had some good that belonged to the creditor, or if he had received some benefit out of the creditor's dominium – this was the restitutio ratione rei.22 If the debtor could not return the creditor's property in specie, so the natural lawyers argued, he should at least be liable for any resulting enrichment,23 in particular for expenses saved.24 Thus, the claim to make restitution was understood to continue the violated right;25 it was an obligatio ex dominio, or, as modern German enrichment lawyers have it, a Rechtsfortwirkungsanspruch.26 As such, it was limited by the creditor's loss on the one hand and by the...

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