The Sophistication of Unjustified Enrichment: A Response to Nils Jansen

Published date01 September 2016
Date01 September 2016

Nils Jansen's elegant and thought-provoking paper in the immediately preceding edition of this journal is a discussion of the development of “enrichment law” (if I can call it that) in the major German-speaking jurisdictions.1 The story he tells, if I may presume to render it in a sentence, is one of the development towards an apparently unified law of unjustified enrichment which culminated in §§812–816 BGB in 1900, followed by a disintegrative process over the last 116 years which was inevitable given that the unification was of ideas which were (and are) actually irreconcilable with each other. He remarks towards the end of his paper on possible parallels with England; but it is surely fair to say that the unification of the English law began no more than fifty years ago, with the publication of the first edition of Goff & Jones's Law of Restitution;2 and quite arguably it was not fully articulated until the publication of Peter Birks' Law of Restitution3 almost twenty years later. Even now, the ground is contested and the future uncertain; just possibly, however, the disintegrative part of the process has already begun.

Professor Jansen does not say anything about Scotland beyond noting our dependence in recent years on German thinking to develop our law of unjustified enrichment, notably in the writings of Niall Whitty and Robin Evans-Jones. It may help Scots lawyers to orientate themselves in relation to Professor Jansen's paper, however, if I say a few words about how we got to where we are today.


I think it would be generally agreed that the starting point towards the modern understanding of Scots law in this area is titles 7 and 8 of Book I of Stair's Institutions,4 respectively entitled “Restitution” and “Recompense, or Remuneration”. Dot Reid has shown pretty conclusively that Stair derived the labels “restitution” and “recompense” from Aquinas' Summa Theologica.5 The general context in which the two titles are placed is Stair's account of personal rights, or obligations; real rights, or property, are dealt with in Book II. As is well-known, Stair divided obligations into two categories: the obediential, put upon men by the will of God, not by their own will (although such obligations might only become concrete “by the mediation of some fact of ours”), and the conventional, “such as we are bound by and through our own will, engagement or consent”.6 Restitution and recompense were both obediential obligations, alongside those of husband and wife, parent and child, tutor and pupil, curator and minor, and “obligations of reparation of delinquence and damage”, i.e. delict.7 Promise and contract were the most general forms of conventional obligation, dealt with in title 10; Stair then went on to deal with the particular contracts of loan, mandate, custody or deposit, permutation and sale, location, and society.8

It is an important point for the present discussion that, for Stair, restitution and recompense are distinct headings in the law of obediential obligations, and although they are treated next to each other, there is no explicit linking via any overarching enrichment concept or principle. Rather, to simplify somewhat, for Stair recompense comes in at the point when restitution ceases to have effect.

Stair's account of restitution, “the obligations whereby men are holden to restore the proper goods of others”, is quite specific that it is “not by contract or consent”.9 He is also at pains to distinguish the obligation of restitution from vindication of property. Restitution, he says, “may seem to be an effect of property”; but actually it

is a personal right, which is a power of the owner to demand it, not only when it is in the possession of the haver, but if he hath fraudfully put it away; and yet it is his [i.e. the haver's] once having it that obliges him.10

Further, the haver's fraud may be a delict, but it is not that wrong which gives rise to the obligation of restitution, which rather “continues … as if he [the haver] yet had it”.11 Stair then goes on to disagree with Grotius who, he says (and as Nils Jansen also remarks12), made the obligation of restitution arise from dominion and property and so, says Stair, from tacit consent. This comment is because Grotius had stated in De Iure Belli et Pacis, that “this obligation [of restitution] is binding upon all men, as if by a universal agreement”, i.e. since originally all property was common to all people, private property had emerged as the result of agreement amongst them.13 Stair's comment is: “Yet this will not hold, if we consider that, though for the most part property be by consent, yet in many things it is without consent”.14 So for Stair restitution is an obediential obligation or personal right only which, as we shall see, could not only be used by an owner but also against an owner.15 Further, Roman law's classification of restitutionary obligations as quasi-contractual could be invoked in support of this position, because “tacit consents produce true, and not quasi contracts”.16 So Stair may have anticipated Pufendorf here, and certainly Wolff and Savigny.17

Stair next turns to the cases where the haver has possession of the things of others but without any fault or delinquence on the part of the haver. So, for example, things acquired by force and fear are brought about by delinquence and thus not to be included in this discussion, which is concerned only with good faith coming into possession.18 Stair gives six examples altogether where the obligation of restitution arises for a haver: (1) things straying; (2) things lost; (3) good faith acquisition (except where positive law secures the buyer, as is commonly the case); (4) things recovered from thieves, robbers and pirates.19 In all of these, it can be assumed that there is an owner separate and distinct from the haver. It is at the next point (5) that Stair brings the condictiones into his account of the obediential obligation of restitution. Here he talks of things

coming warrantably to our hands and without any paction of restitution, yet if the cause cease by which they become ours [i.e. the haver is till now owner or at any rate entitled to possess], there superveneth the obligation of restitution of them20

“whence,” Stair continues, “are the condictions in law, ob non causam and causa data, causa non secuta”.21 His example is transfers of property in contemplation of marriage which will be undone if the marriage does not happen. But he also notes here that things received ex turpi causa do not fall to be returned – “in culpa, potior est conditio possidentis”, and the haver has become and remains owner despite the illicit cause.22 Finally, (6), “restitution extendeth

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