Right to enrichment
The enrichment law is a branch of civil law . It deals with the reversal of illegal transfers of assets.
The formation of the condictio is one of the most important and original achievements of classical Roman law . The condictio was designed as an actio in personam , it was abstract in so far as the reason for the reclaim was not mentioned in the complaint and was used to achieve the repayment of a sum of money from a loan agreement, from a debt deed or stipulation . Because of its abstract nature, it could easily be applied to situations in which a service had been provided without a legal basis (sine causa) . Classical Roman law thus developed a series of sharply delineated cases, which had in common that the basic idea behind the claim was not so much a claim as a non- retention. In the post-classical period, these types of conditions were divided into different basic types and the emphasis in the justification for reclaiming was shifted to considerations of equity:
"Iure naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem."
"It is natural law that no one may unlawfully enrich himself to the detriment of another."
Legal families with codified right to enrichment
German legal circle
General clauses relating to enrichment law have been incorporated into the more modern codifications of German and Swiss private law ( Section 812 (1) BGB and Article 62 OR). According to prevailing opinion, cases of enrichment are divided into performance conditions and non-performance conditions (with the most important case being the interference condition). In addition, the other conditional cases of Roman law in Section 812 (2) sentence 2 BGB, Article 62 (2) OR and Section 1431 ff. ABGB continue to exist , but their practical relevance is low.
Typical cases of performance conditions are claims for reimbursement after payment of money, transfer of ownership or the provision of services or work without a legal reason for this. The performance condition is excluded according to § 814 BGB if the person performing the service knew that the performance was made without reason. The same function is fulfilled by Art. 63 OR or § 1431 ABGB, according to which the performance can only be reclaimed if the person performing was in error about the debt obligation. The provisions differ from federal German law insofar as the burden of proof for the error in Germany lies with the defendant.
The performance condition is of particular importance in Germany due to the abstraction principle that applies there : If a sales contract was concluded and the object of purchase subsequently transferred, but it later turns out that the sales contract is void, this nullity under the law of obligations does not affect the disposal transaction. Here, the performance condition serves the seller to achieve the return transfer of the object of purchase. In Switzerland, however, the transfer of ownership is only effective if the contractual obligation is also effective. Transfer of ownership is therefore not possible in the event of a void obligation, the seller remains the owner and must demand the return of the purchased item with the property claim .
The version action under common law was not adopted in the BGB; the same applies to Switzerland (see BGE 42 II 467). In Austria it continues to apply formally in Section 1041 ABGB, but has been severely limited in its scope by case law.
The intervention condition is used to handle innocent interventions in another's right (e.g. A accidentally consumes B's coal); tort law serves for culpable interventions . The condition of intervention is also of particular importance if a third-party item is sold and the purchaser acquires ownership of it (e.g. through bona fide purchase ). In these cases, the person who has lost his property as a result of this has a claim against the seller to surrender what has been obtained through the disposition under Section 816 (1) sentence 1 BGB. The condition of interference has also established itself in the area of patent and naming law in order to receive the usual license fees as a replacement in the event of unauthorized use.
Romanic legal system
The French Civil Code and the codifications of the Romance legal system, which are based on its tradition, do not contain a general clause on the handling of enrichment cases. The reason for this is the influence of Pothier (1699–1772) on the development of the Code civils. In his work, Pothier only dealt with the condictio indebiti and resolved constellations under the law of enrichment through the expansion of management without commission (gestion d'affaires) . Accordingly, the provisions on enrichment compensation in the Civil Code are very scattered. The most important are the fulfillment of a non- guilt (paiement de l'indu) and the management without an order, which are led in the Code civil under the heading of the quasi-contracts (quasi-contracts) .
The action for restitution (répétition de l'indu) is already a principle in Art. 1235 C.civ. introduced, their precise design can be found in Articles 1376 to 1381. A prerequisite is
- A fulfillment (paiement): this does not have to consist of an accidental cash payment, but can also be present in the case of goods or account credits. It is important to negate services and transfer of use.
- A debt that no longer exists or the incorrect performance of someone else's debt. It is disputed whether the guilt simply must not have existed objectively or whether the fulfillment happened precisely because of the error .
- The claim may not be excluded, which is the case if it arises from an obligation of decency (cf. Art. 1235, Paragraph 2 C.civ and also Art. 2634 of the Italian Codice civile .)
Even Aubry and Rau had in the manual of the French civil law called for a general enrichment claim to the French law. The Court of Cassation finally followed suit in 1892 in arrêt Boudier, where it admitted a version action, expressly invoking the law of equity:
"Attendu que cette action, derivative du principe d'équité, qui défend de s'enrichir au detriment d'autrui, et n'ayant été réglementée par aucun texte de nos lois, son exercice n'est soumis à aucune condition determinée; qu'il suffit, pour la rendre recevable, que le demandeur allègue et offre d'établir l'existence d'un avantage qu'il aurait; par un sacrifice ou un fait personnel, procuré à celui contre lequel il agit. »
Since Saleilles , this has been referred to with the German term enrichissement sans cause 'unjustified enrichment'. He has the following requirements:
- A shift in assets with the consequence of a reduction (appauvrissement) of the plaintiff's assets,
- an enrichment (enrichissement) of the defendant. There is no distinction between performance (this corresponds more closely to the reclamation action) and non-performance conditions.
- The transfer of assets must have taken place without a legally viable legal reason (sans cause légitime) .
Legal families without a codified right to enrichment
The emergence of a mating area of law of enrichment law ( unjust enrichment law ) is one of the common law on the developments of the 20th century. The traditional doctrine could not recognize any togetherness in the treated cases of Roman-Germanic enrichment law , except that there was neither a contractual nor a tortious claim. A general legal principle of unjust enrichment was unknown. The Roman-Germanic jurist entered “another world, as it were”.
In the 14th and 15th centuries - similar to the condictio of classical Roman law - quantified sums of money could be sued with the aid of the debt action (action of debt) ; This related in particular to loans, but could also be asserted in the absence of consideration , as was the account claim. The impractical procedural formalities of the debt lawsuit led to the assumpsit lawsuit for the reversal of contracts being made fruitful from the 16th century . The assumpsit lawsuit was actually intended to claim damages for breach of contract. Since the Slade case (1602) at the latest , however, it could be brought forward for any guilt, regardless of the reason for it. When the contract was reversed, an implied contract was read into the contract . A case law developed from this with the assumpsit formulas action for money had and received , action for quantum meruit , action for quantum valebat and action for money paid .
The fact that these types of complaint had anything in common was vehemently denied. Lord Mansfield's advance in Moses v Macferlan (1760) to establish a general claim to enrichment on equity was heavily criticized; this is nothing other than "well-meaning sloppiness of thought" (Scrutton LJ in Holt v Markham (1923)). The implied contract theory reached its peak in the first half of the 19th century. In 1951 Lord Porter wrote in Reading v. A.-G. (1951):
“The exact status of the law of unjust enrichment is not yet assured. [...] I am content for the purposes of this case to accept the view that it forms no part of the law of England ”
A gradual process of approximation to the Roman-Germanic legal family did not take place until about 1966 with the publication of Gareth Jones ' and Robert Goff's The Law of Restitution . In the United States, an enrichment law with a general claim to enrichment was already established with the Restatement of the law of Restitution of 1937, § 1 of which reads in almost continental generalization:
"A person who has been unjustly enriched at the expense of another is required to make restitution to the other."
Both Goff / Jones and the restatement distinguish three forms of unjust enrichment:
- Advantages of the defendant "from or by the act of the plaintiff" : This roughly corresponds to the performance condition. While the Roman-Germanic enrichment law emphasizes the lack of legal ground (which is regulated in contract law), common law asks casuistically why enrichment should be classified as unjustified in a specific case , referring to prejudices with as similar facts as possible. The following case groups emerged:
- Performance with erroneous assumption of a debt (payment under mistake)
- Performance under duress (compulsion, coercion)
- Performance after threat (duress), this also includes the payment of a joint debtor (doctrine of contribution)
- Service to be insubordinate influence on the decision-making process (undue influence)
- Performance on a contract that was not validly justified or later became ineffective. The legal consequence can differ due to the prejudicial binding depending on the reason for nullity.
- Advantages of the defendant "by his own wrongful conduct" , comparable to the intervention conditions. The plaintiff can sue for unjust enrichment instead of a tort action and demand compensation instead of damages, in intellectual property law also profit skimming .
- Advantages of the defendant "where the defendant has acquired from a third party a benefit for which he must account to the plaintiff" . This group of cases is unknown in Roman-Germanic law. These are cases where the plaintiff (such as a surety) pays the debt of a third party. The Roman-Germanic legal family works here with a legal session ; in the absence of this, common law gives the payer an enrichment claim against the third party (= substitution under the law of obligations ).
Another peculiarity arises from the solution of enrichment law cases through the law of equity . If the plaintiff has paid the defendant due to an error, for example, he is entitled to a judicially fictitious (constructed) trust (constructive trust) on the object provided. In the case of a trust , the trustee is the owner of a right, but can only exercise this right within the framework of a trust relationship in favor of another. If this fiduciary relationship comes from a contract, it is expressly called trust (express trust) . In the cases mentioned, there is no express trust, but a judicially fictitious trust based on an objective legal system. This is a kind of quasi-in rem right that even entitles the holder to segregation in the event of the trustee's bankruptcy.
Theories of legal philosophy
In the common law countries in particular, in the course of the recognition of the law of restitution, the philosophical foundations of the reversal of enrichment law cases have come to the fore. Much of the literature understands the right to enrichment as a case of the iustitia correctiva in the Aristotelian sense:
“The same thing is the middle between too much and too little, but the advantage and disadvantage are in opposite ways too much and too little, in that the advantage is too much of the good and too little of the evil, the disadvantage is the opposite. Between them the middle was what we call the right. And so it would be the equalizing or restoring law. The equalizing right here means the middle between disadvantage and advantage. "
The iustitia correctiva only says something about the parties to the enrichment claim, but not about why the plaintiff should be entitled to an enrichment claim against the defendant; rather, it presupposes this normative core. The prevailing opinion sees this normative core in a violation of a subjective right in the Kantian sense. The shift in assets is therefore to be reversed, since it represents an impairment of the free action of the plaintiff.
Comparative law analysis
Claims for reimbursement due to performance on a non-fault or failure of purpose
Performance by mistake
The question of whether a claim to enrichment is excluded if the provider succumbed to a legal error (ignorantia juris non excusat) is hardly discussed in continental European legal systems. Historically, such a rule also existed in continental Europe. Classical Roman law excluded the condictio indebiti in the case of an error iuris only if the performance corresponded to a moral duty; even with Justinian the rule was generalized to all legal errors. She took over common law and Windscheid gave her axiomatic status in his textbook on Pandect Law . In today's German law it is already unknown because no error at all is assumed for the condition. In Austria an error is assumed, but according to § 1431 ABGB it is explicitly included in the legal error. The Swiss Federal Court of Justice has also followed this line (BGE 40 II 249).
In common law, on the other hand, the exclusion of the wrongful payment of money has been firmly anchored since Lord Ellenborough's decision in Bilbie v Lumley (1802) up to the present day. In this decision, the plaintiff, an insurer, demanded a return of the sum insured because the insurance contract was ineffective; however, at the time of payment, he already had all the information he needed to know about the ineffectiveness of the contract. Lord Ellenborough dismissed the action: “every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case. “American law adopted this principle and it was included in the restatement of the law , albeit with numerous exceptions (§§ 46 sqq.) . New York (since 1942), Kentucky and Connecticut are important exceptions. In England and Wales the prejudice was first given by Kleinwort Benson Ltd. v Lincoln City Council (1999) repealed.
Exclusion of the claim in the event of a moral offense or illegality
Even in Roman law, the claim for restitution was excluded if the underlying legal relationship was immoral: Anyone who had bribed a judge (D. 12, 5, 3) or had paid wages for indecent acts (D. 12, 5, 4, 3) could Do not demand money back (cf. also Papinian D. 12, 7, 5 “dixi, cum ob turpem causam dantis et accipientis pecunia numeretur, cessare condictionem et in delicto pari potiorem esse possessorem”). This rule is recognized in a comparable form in all modern legal systems: For example in § 817 sentence 2 BGB, Art. 66 OR, § 1174 ABGB, Art. 2035 Codice civile. In addition to the common law countries, the rule is also recognized in France through judicial law.
The reasons put forward for the rule can be roughly divided into two camps. The first position sees the reason that it is contrary to the dignity of the courts to make oneself available even if the claim has come about through violation of the law: “It is a well-settled rule that in no case will the court lend its aid to the enforcement of an illegal agreement. ”(Lord Mansfield in Holman v Johnson (1775)). The second view assumes that the rule has a criminal function: There could be no better deterrent against illegal acts than to refuse to enforce them by the courts (in this sense, for example, RGZ 105, 270 and BGHZ 39, 87 (91)). In some cases, in a consequent continuation of this line (as in general land law) it was argued that it could hardly be correct that the accomplice, i.e. the opponent of the claim, should keep the performance as a reward, as it were. The sum must therefore accrue to the tax authorities (cf. also Thomas Aquinas Book II, Part II, quaestio 62, 5 for cases of simony ).
Common law in particular has developed a rich casuistry of exclusion cases :
- in pari delicto: Reclamation is only excluded if the claimant and defendant are in pari delicto . If, on the other hand, the defendant is the “main culprit”, the plaintiff can easily demand his performance back.
- locus poenitentiae: In order to give an incentive to abandon the transaction until shortly before the transaction is unlawful or immoral, the rule of locus poenitentiae opens up the possibility of reclaiming performance even if the transaction has already been closed but not yet completed is settled.
- Claim can be justified without illegal or immoral business: The right to reclaim is not excluded if it can be justified without referring to the illegal or immoral behavior, e.g. from property; this is not unlike the regulation known in German case law, according to which § 817 sentence 2 does not apply to § 985 and § 823 BGB.
The French Civil Code does not contain such a regulation and thus forced the jurisprudence to enshrine such a norm in judicial law; it is derived from the principle nemo auditur propriam turpitudinem allegans . However, the jurisprudence makes a fine distinction between immorality (conventions immorales), which excludes reclamation, and mere unlawfulness (conventions seulement illicites), which occurs particularly in the case of prohibitions of an economic or socio-political nature and enables reclaiming. The Italian codice civile even explicitly included this regulation (offesa al buon costume) in Article 2035.
- Paolo Gallo: Unjust Enrichment: A Comparative Analysis . In: The American Journal of Comparative Law . tape 40 , 2, spring, 1992, pp. 431-465 .
- DP O'Connell: Unjust Enrichment . In: The American Journal of Comparative Law . tape 5 , 1, Winter, 1956, pp. 2–17 (Presentation of the historical development in English law with reference to French law).
- Daniel Visser : Unjustified Enrichment in Comparative Perspective . In: Mathias Reimann , Reinhard Zimmermann (eds.): The Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 .
- Daniel Visser: Unjustified Enrichment . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 978-1-84542-013-0 .
- Konrad Zweigert , Hein Kötz : Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen, D. Unjust enrichment.
- Ernst von Caemmerer , Peter Schlechtriem (Ed.): International Encyclopedia of Comparative Law . Volume X: Restitution - Unjust Enrichment and Negotiorum Gestio . Mohr Siebeck, Tübingen 2007, ISBN 978-90-04-16309-6 .
- John Philip Dawson : Unjust enrichment: A comparative analysis. A series of lectures delivered under the auspices of the Julius Rosentbal Foundation at Northwestern University School of Law, in April 1950 . WS Hein & Co., Buffalo, NY 1999, ISBN 978-1-57588-523-0 (New edition Little Brown & Co., Boston 1951).
- Peter Schlechtriem : Restitution and Enrichment Compensation in Europe. A comparative legal representation . Mohr Siebeck, Tübingen 2001, ISBN 978-3-16-147542-9 .
- Jennifer M. Nadler: What Right Does Unjust Enrichment Law Protect? In: Oxford Journal of Legal Studies . tape 28 , no. 2 , 2008, p. 245-275 , doi : 10.1093 / ojls / gqn011 .
- Robert Chambers, Charles Mitchell, James Penner: Philosophical Foundations of the Law of Unjust Enrichment . Oxford University Press, Oxford 2009, ISBN 978-0-19-956775-1 , doi : 10.1093 / acprof: oso / 9780199567751.001.1 .
- Dennis Solomon : The enrichment compensation in instruction cases: comparative study of German law and the legal systems of common law . Mohr Siebeck, Tübingen 2004, ISBN 978-3-16-148294-6 (Additional dissertation Passau; Volume 124 of studies on foreign and international private law ).
- ^ Zweigert / Kötz: Comparative Law. 2nd Edition.
- ↑ Jennifer M. Nadler: What Right Does Unjust Enrichment Law Protect? In: Oxford Journal of Legal Studies . tape 28 , no. 2 , 2008, p. 245-275 , doi : 10.1093 / ojls / gqn011 .
- ^ New York Consolidated Laws. CVP - Civil Practice Law & Rules Article 30 - (3001–3045) Remedies and Pleading: 3005 - Relief against mistake of law ( English ) Justia Corporate Center. Retrieved January 24, 2019.