Unjust Enrichment and Change of Position
| Date | 01 June 2004 |
| Author | Vincent Sagaert |
| DOI | 10.1177/1023263X0401100204 |
| Published date | 01 June 2004 |
| Subject Matter | Article |
Vincent Sagaert*
11 MJ 2 (2004) 159
Unjust Enrichment and Change of Position
Summary
Unjust enrichment is a highly debated and complex legal device, which gives rise
to multiple legal problems. One of the difficulties arising within the law of unjust
enrichment is that of the security of receipt of the debtor. Contrary to
contractual obligations, the debtor of the legal obligation to make restitution is
not always aware of the existence of that obligation. Consequently, the debtor
may have acted to this detriment in reliance on his belief that he was entitled to
keep the enrichment. This contribution analyzes whether the good faith of the
recipient is protected in a restitutive relationship in some of the major legal
systems in European private law. This analysis will conclude that all legal
systems indeed protect the defendant who has changed his position in good faith
that he was entitled to the enrichment, but that the manner in which the
protection is provided differs between these legal systems. The second part of
this contribution shall elaborate on the prevailing approach in European private
law, which starts from the defence of change of position. It will show that all
legal systems are struggling to find a just solution for the same problems.
§ 1. Introduction
1. The law of unjust enrichment is one of the most debated issues of private law in
many European countries. In Dutch law, a number of important judgments rendered by
the Dutch Supreme Court (‘Hoge Raad’) have focused the attention of legal scholars on
this concept,1 in English law the field of the law of restitution has become one of the
major sources of private law, and in France legal scholars also seem to have
* Professor of Property Law at the University of Antwerp, Researcher at the Catholic University of
Leuven, Department of Private Law, solicitor at the bar of Brussels (Eubelius).
1. For an overview: J.B.M. Vranken, ‘De strijd om het verrijkingsrecht’, 73 Nederlands Juristenblad 33
(1998), 1495-1503.
Unjust Enrichment and Change of Position
160 11 MJ 2 (2004)
rediscovered this source of obligation. The law of unjust enrichment is sometimes
misunderstood as an issue at the edge of the law, being founded upon equitable
considerations rather than in legal solutions.2 It is our conviction that, on the contrary,
the analysis of the law of unjust enrichment very often requires a profound
understanding and delicate combination of various aspects of private law (law of
obligations, property law, contract law, tort law, etc.).
In this contribution only one issue within this very complex legal device shall be
discussed, i.e. the effects of the fact that the defendant has, in reliance on his
enrichment, changed his position in such way that the value of his enrichment is no
longer available at the moment that the enrichment claim is brought. While the
impoverishment of the claimant is most frequently determined at the moment of its
occurrence,3 the enrichment of the defendant remains undetermined until the claim in
unjust enrichment is brought by the claimant. Difficulties may arise if the defendant has
lost the enrichment at the moment that he is charged with the obligation to make
restitution. For instance: someone receives a payment which he believes is lawful and,
relying on the enrichment, the recipient goes on a holiday which he pays for with the
money received and which he normally could not afford. Afterwards, he is sued to make
restitution of the payment. The obligation to pay the full amount received would put
him in a worse position than the position he would have been in if he had not received
the payment, as in that case he would not have taken the holiday. The question is
whether the defendant who has acted in good faith does not deserve protection in order
that the loss of the enrichment can defeat the restitutive claim.
In those cases, a conflict arises between two leading principles of national law systems,
which can even be characterized as principles of European private law. On the one
hand, the general prohibition of unjust enrichment, which would require that the unjust
transfer of value should be undone in full, must be taken into consideration. On the
other hand, from the side of the recipient, the general interest in security of receipt must
be protected. According to this principle, which is an application of the principle of
legal certainty, each recipient of assets must be protected in his legitimate expectations
that wealth which was transferred to him, belongs to him and that this enrichment will
have a permanent nature.
2. When comparing the different national legal systems, it will emerge that these
interests are not balanced in the same way in all legal systems. Two different
approaches in European private law may be distinguished. The first part of this
2. M. Malaurie, Les restitutions en droit civil français, (Cujas, 1991), 50: ‘L’action de in rem verso a un
particularisme accusé qui tient à sa nouveauté et à son caractère subsidiaire: elle est en quelque sorte en
marge du droit’.
3. Cf. Cass. fr. 18 May 1982, Bulletin des arrêts de la Cour de Cassation: chambres civiles (1982), III,
nr. 122.
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