Unjustified Enrichment

Transcription

1 Principles of European Law Unjustified Enrichment (PEL Unj. Enr.) Bearbeitet von Stephen Swann, Christian von Bar 1. Auflage Buch. XXXVI, 740 S. Hardcover ISBN Format (B x L): 16,5 x 24,5 cm Gewicht: 1300 g Recht > Zivilrecht > Internationales Privatrecht > Europäisches Privatrecht Zu Leseprobe schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Principles of European Law on Unjustified Enrichment (PEL Unj. Enr.)

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4 Principles of European Law Study Group on a European Civil Code Unjustified Enrichment (PEL Unj. Enr.) prepared by Professor Christian von Bar, Osnabrück Chairman of the Working Team on Extra-contractual Obligations and Dr. Stephen Swann, Osnabrück with advice from the Advisory Council and the Drafting Committee approved by the Co-ordinating Group Translation: Dr. Stephen Swann, Pádraic McCannon and Susan Singleton, Osnabrück

5 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:50 Insgesamt 36 Seiten Imprimiert The Osnabrück Working Team Begoña Alfonso de la Riva (Spanish Law, August 1999-August 2003), Dr. Erwin Beysen (Belgian, French and Luxembourgian Law 1999-November 2006), Sandie Calme (Belgian, French and Luxembourgian Law (since January 2007), Dr. Evlalia Eleftheriadou (Greek Law), Silvia Fedrizzi (Italian Law, August 1999-October 2000), Dr. Andreas Fötschl (Austrian Law, August 1999-April 2005), Dr. Caterina Gozzi (Italian Law, February 2001-January 2008), Lodewijk Gualthérie van Weezel (Dutch Law, February 2001-August 2002), Annamaria Herpai (Hungarian Law, since October 2003), Dr. Matthias Hünert (German Law), Dr. Stefan Kettler (Irish Law, November 1999-August 2001), Ina El Kobbia (Scottish law until October 2003, organisation and minutes for the Co-ordinating Group and the Advisory Council), Rosalie Koolhoven (Dutch Law, since March 2003), Dr. María Ángeles Martín Vida (Spanish Law, September 2003-January 2006), Pádraic McCannon (Irish and Scots Law, August 2006-December 2007), Dr. Mary-Rose McGuire (Austrian Law, since May 2005), Paul McKane (Irish and Scots Law, August 2005-July 2006), Philip Mielnicki (Nordic Laws, since February 2007), Franz Nieper (Dutch Law, November 1999-October 2000), José Carlos de Medeiros Nóbrega (Portuguese Law, August 1999-December 2005 and January 2008-December 2008), Sandra Rohlfing (Working Team rapporteur), Johan Sandstedt (Nordic Laws, April 2001-December 2006), Mårten Schultz (Nordic Laws, January 2000-March 2001), Daniel Smith (Supervision of the Master Copy), Dimitar Stoimenov (Bulgarian and Slovenian Law, since October 2005), Dr. Stephen Swann (English Law), Ferenc Szilagyi (Romanian Law, since July 2005) and Carles Vendrell Cervantes (Spanish Law, since June 2006). The Advisory Council on Unjustified Enrichment Law and the Law on Benevolent Intervention in Another s Affairs Professor Eric Clive (Edinburgh), Professor Júlio Manuel Vieira Gomes (Oporto), Justitierådet Professor Torgny Håstad (Stockholm), Professor Ewan McKendrick (Oxford), Professor Peter Schlechtriem (Freiburg i. Br.) and Dr. Kristina Siig (Aarhus). The Co-ordinating Group Professor Guido Alpa (Genua/Rome, until May 2005), Professor Kaspars Balodis (Riga, December 2004 until December 2006), Professor Christian von Bar (Osnabrück), Professor Maurits Barendrecht (Tilburg, until May 2005), Professor Hugh Beale (Warwick), Dr. Mircea-Dan Bob (Cluj Napoca, since June 2007) Professor Michael Joachim Bonell (Rome), Professor Mifsud G. Bonnici (Valetta, since December 2004), Professor Carlo Castronovo (Milan), Professor Eric Clive (Edinburgh), Professor Eugenia Dacoronia (Athens), Professor Ulrich Drobnig (Hamburg), Professor Bénédicte Fauvarque-Cosson (Paris), Professor Marcel Fontaine (Louvain La Neuve, until December 2003), Professor Andreas Furrer (Luzern, since December 2003),

6 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:50 Insgesamt 36 Seiten Imprimiert Professor Jacques Ghestin (Paris), Professor Sir Roy Goode (Oxford, until December 2002), Professor Viggo Hagstrøm (Oslo, since June 2002), Professor Arthur Hartkamp (The Hague, until December 2002), Justitierådet Professor Torgny Håstad (Stockholm), Professor Johnny Herre (Stockholm), Professor Martijn Hesselink (Amsterdam), Professor Ewoud Hondius (Utrecht, until May 2005), Professor Jérôme Huet (Paris), Professor Giovanni Iudica (Milan, since June 2004), Dr. Monika Jurčova (Trnava, since June 2006), Professor Konstantinos Kerameus (Athens), Professor Ole Lando (Copenhagen), Professor Kåre Lilleholt (Bergen, since June 2003), Professor Brigitta Lurger (Graz), Professor Hector MacQueen (Edinburgh), Professor Denis Mazeaud (Paris, since June 2005), Professor Ewan McKendrick (Oxford), Professor Valentinas Mikelenas (Vilnius, since December 2004), Professor Eoin O Dell (Dublin, until June 2006), Professor Edgar du Perron (Amsterdam), Professor Denis Philippe (Leuven, since June 2004), Professor Jerzy Rajski (Warsaw), Professor Christina Ramberg (Gothenburg), Professor Philippe Rémy (Poitiers,until June 2005), Judge Professor Encarna Roca y Trias (Madrid/Barcelona), Professor Peter Schlechtriem (Freiburg i. Br.), Professor Martin Schmidt-Kessel (Osnabrück, since December 2004), Professor Jorge Sinde Monteiro (Coimbra, until December 2004), Professor Lena Sisula-Tulokas (Helsinki), Professor Sophie Stijns (Leuven), Professor Matthias Storme (Leuven), Dr. Stephen Swann (Osnabrück), Professor Christian Takoff (Sofia, since June 2007), Professor Lubos Tichý (Prague, since June 2005), Professor Verica Trstenjak (Maribor, until December 2006), Professor Vibe Ulfbeck (Copenhagen, since June 2006), Professor Paul Varul (Tartu, since June 2003), Professor Lajos Vékás (Budapest), Professor Anna Veneziano (Teramo). Further Members of the Study Group s Advisory Councils Professor John W. Blackie (Strathclyde, Tort and Trust Law), Professor Michael Bridge (London, Property Law and Security), Professor Angel Carrasco (Toledo, Security), Professor Pierre Crocq (Paris, Security), Professor Helmut Grothe (Berlin, Lease of Goods), Professor Jan Kleineman (Stockholm, Tort Law, until June 2003), Professor Irene Kull (Tartu, Lease of Goods; Gratuitous Contracts; Trust Law), Professor Marco Loos (Amsterdam, Service Contracts; Mandate), Professor Graham Moffat (Warwick, Trust Law, since May 2006), Professor Guillermo Palao Moreno (Valencia, Tort Law), Professor Maria A. L. Puelinckx-van Coene (Antwerp, Gratuitous Contracts), Professor Stefano Troiano (Verona, Gratuitous Contracts), Professor Antoni Vaquer Aloy (Lleida, Lease of Goods; Gratuitous Contracts), Professor Alain Verbeke (Leuven and Tilburg, Lease of Goods), Professor Anders Victorin (Stockholm, Lease of Goods), Professor Sarah Worthington (London, Lease of Goods).

7 Volume 8 To be cited as: PEL / von Bar, Swann, Unj. Enr., Chapter 1, Introduction, A, 1 PEL / von Bar, Swann, Unj. Enr., Chapter 1, Article 1:101,, A, 1 PEL / von Bar, Swann, Unj. Enr., Chapter 1, Article 1:101, Notes, I, 1 ISSN ISBN (Stämpfl i) ISBN (Bruylant) ISBN (sellier. european law publishers) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografi e; detailed bibliographic data are available on the Internet at by sellier. european law publishers GmbH, Munich together with Study Group on a European Civil Code. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photo-copying, recording or otherwise, without prior permission of the publisher. Design: Sandra Sellier, Munich. Production: Karina Hack, Munich. Typesetting: fi dus Publikations-Service GmbH, Nördlingen. Typeface: Goudy Old Style and Goudy Sans from Linotype. Printing and binding: Friedrich Pustet KG, Regensburg. Printed on acid-free, non-ageing paper. Printed in Germany.

8 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :38:17 Insgesamt 38 Seiten Imprimiert Foreword The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in moveables which are especially relevant for the functioning of the common market. It was founded in 1999 as a successor body to the Commission on European Contract Law, on whose work the Study Group is building. Both groups have undertaken to ascertain and formulate European standards of patrimonial law for the Member States of the European Union. The Commission on European Contract has achieved this for the field of general contract law (Lando and Beale [eds.], Principles of European Contract Law, Parts I and II combined and revised, The Hague, 2000; Lando/Clive/Prüm/Zimmermann [eds.], Principles of European Contract Law Part III, The Hague, 2003). These Principles of European Contract Law (PECL) are being adopted with adjustments by the Study Group on a European Civil Code to take account of new developments and input from its research partners. The Study Group is itself dovetailing its principles with those of the PECL, extending their encapsulation of standards of patrimonial law in three directions: (i) by developing rules for specific types of contracts; (ii) by developing rules for extra-contractual obligations, i. e. the law of non-contractual liability arising out of damage caused to another (tort/delict), the law of unjustified enrichment, and the law of benevolent intervention in another s affairs (negotiorum gestio); and (iii) by developing rules for fundamental questions in the law on mobile assets in particular transfer of ownership, security for credit, and trust. Like the Commission on European Contract Law s Principles of European Contract Law, the results of the research conducted by the Study Group on a European Civil Code seek to advance the process of Europeanisation of private law. We have undertaken this endeavour on our own personal initiative and merely present the results of a pan-european research project. It is a study in comparative law in so far as we have always taken care to identify the legal position in the Member States of the European Union and to set out the results of this research in the introductions and notes. That of course does not mean that we have only been concerned with documenting the pool of shared legal values or that we simply adopted the majority position among the legal systems where common ground was missing. Rather we have consistently striven to draw up sound and fitting principles, that is to say, we have also recurrently developed proposals and concepts for the further development of private law in Europe. The working methods of the Commission on European Contract Law and the Study Group on a European Civil Code were likewise quite similar. The Study Group, however, has had the benefit of Working (or Research) Teams groups of younger legal scholars under the supervision of a senior member of the Group (a Team Leader) which undertook the basic comparative legal research, developed the drafts for discussion and assembled the extensive material required for the notes. Furthermore, to each Working Team was vii

9 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :38:18 Insgesamt 38 Seiten Imprimiert Foreword allocated a consultative body an Advisory Council. These bodies deliberately kept small in the interests of efficiency were formed from leading experts in the relevant field of law who are representative of the major European legal systems. The proposals drafted by the Working Teams and critically scrutinised and improved in a series of meetings by the respective Advisory Council were submitted for discussion on a revolving basis to the actual decision-making body of the Study Group on a European Civil Code, the Co-ordinating Group. Until June 2004 the Co-ordinating Group consisted of representatives from all the jurisdictions belonging to the EU immediately prior to its enlargement in Spring 2004 and in addition legal scholars from Estonia, Hungary, Norway, Poland, Slovenia and Switzerland. Representatives from the Czech Republic, Malta, Latvia, Lithuania and Slovakia joined us after the June meeting 2004 in Warsaw. Besides its permanent members, other participants in the Co-ordinating Group with voting rights included all the Team Leaders and when the relevant material was up for discussion the members of the Advisory Council concerned. The results of the deliberations during the week-long sitting of the Co-ordinating Group were incorporated into the text of the Articles and the commentaries which returned to the agenda for the next meeting of the Co-ordinating Group (or the next but one depending on the work load of the Group and the Team affected). Each part of the project was the subject of debate on manifold occasions, some stretching over many years. Where a unanimous opinion could not be achieved, majority votes were taken. As far as possible the Articles drafted in English were translated into the other languages either by members of the Team or third parties commissioned for the purpose. The number of languages into which the Articles could be translated admittedly varies considerably from volume to volume. That is in part a consequence of the fact that not all Working Teams were equipped with the same measure of financial support. We also had to resign ourselves to the absence of a perfectly uniform editorial style. Our editing guidelines provided a common basis for scholarly publication, but at the margin had to accommodate preferences of individual teams. However, this should not cause the reader any problems in comprehension. Work on this series of Principles of European Law had begun long before the European Commission published its Communication on European Contract Law (in 2001), its Action Plan for a more coherent European contract law (in 2003), and its follow-up Communication European Contract Law and the revision of the acquis: the way forward (in 2004). These documents for their part were published before we formed the Network of Excellence, together with other European research groups and institutions, which have been collaborating in the preparation of an Academic Common Frame of Reference with the support of funds from the European Community s Sixth Research Framework Programme. This network first published an outline edition of its research results: as a first step, in 2008, an interim outline edition (von Bar/Clive/Schulte-Nölke et al. [eds.], Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Interim Outline Edition, Munich 2008); and, with revisions and additions, a final outline edition this year (von Bar/Clive/Schulte-Nölke et al. [eds.], Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Outline Edition, Munich 2009). A final and full edition was published later in 2009 (von Bar/Clive, Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Full Edition, viii

10 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :38:18 Insgesamt 38 Seiten Imprimiert Foreword Munich 2009). The texts laid before the public by the Study Group on a European Civil Code are integrated in these latter texts. However, the extensive comparative law introductions and the translations of the articles of the Book or Part concerned into the other languages of the Member States are only being published in the PEL Series. Moreover, there are occasionally small discrepancies between the model rules published in this series and those of the Draft Common Frame of Reference because each publication within the PEL Series was conceived and prepared as a self-contained treatment of the field while in the consolidated composite DCFR text certain provisions could be trimmed. Repetitions could be avoided. It was also possible to respond to criticism which had been made of the model rules in the PEL Series and which had convinced us of the need to make changes. In order to leave no room for misunderstanding, it is important to stress that these Principles have been prepared by impartial and independent-minded scholars whose sole interest has been a devotion to the subject-matter. None of us have been rewarded for taking part or mandated to do so. None of us would want to give the impression that we claim any political legitimation for promoting harmonisation of the law. Our legitimation is confined to curiosity and an interest in Europe. In other words, the volumes in this series are to be understood exclusively as the results of scholarly legal research within large international teams. Like every other scholarly legal work, they restate the current law and introduce possible models for its further development; no less, but also no more. We are not a homogenous group whose every member is an advocate of the idea of a European Civil Code. We are, after all, only a Study Group. The question whether a European Civil Code is or is not desirable is a political one to which each member can only express an individual view. Osnabrück, November 2009 Christian v. Bar ix

11 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Our Sponsors and Donors The project of the Study Group on a European Civil Code represents a research endeavour in legal science of extraordinary magnitude. Without the generous financial support of many organisations and individuals its realisation would not have been possible. Our thanks go first of all to the Deutsche Forschungsgemeinschaft (DFG), which has supplied the lion s share of the financing for the first phase of this project, including the salaries of the Working Teams based in Germany and the direct travel costs for the meetings of the Coordinating Group and the numerous Advisory Councils. The work of the Dutch Working Teams was financed by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO). Further personnel costs were met by the Flemish Fonds voor Wetenschappelijk Onderzoek-Vlaanderen (FWO), the Onassis-Foundation, the Austrian Fonds zur Förderung der wissenschaftlichen Forschung, Norges forskningsråd (the Research Council of Norway) and the Fundação Calouste Gulbenkian. From the middle of 2005 funds were made available to us under the mantle of the CoPECL Network of Excellence established under the European Union s Sixth Framework Programme for Research and Technological Development. In addition we have consistently been able to fall back on funds made available to the respective organisers of the eighteen week long sittings of the Coordinating Group by the relevant university or other sources within the country concerned. It is therefore with the deepest gratitude that I must also mention the Consiglio nazionale forense (Rom) and the Istituto di diritto privato of the Università di Roma La Sapienza, which co-financed the meeting in Rome (June 2000), which followed our inaugural meeting in Utrecht (December 1999). The session in Salzburg (December 2000) was supported by the Austrian Bundesministerium für Bildung, Wissenschaft und Kultur, the Universität Salzburg and the Institut für Rechtspolitik of the Universität Salzburg. The discussions in Stockholm (June 2001) were assisted by the Department of Law, Stockholm University, the Supreme Court Justice Edward Cassel s Foundation and Stiftelsen Juridisk Fakultetslitteratur (SJF). The meeting in Oxford (December 2001) had the support of Shearman & Sterling, the Hulme Trust, Berwin Leighton Paisner and the Oxford University Press (OUP). The session in Valencia (June 2002) was made possible by the Asociación Nacional de Registradores de la Propiedad, Mercantil y Bienes Muebles, the Universitat de València, the Ministerio Español de Ciencia y Tecnología, the Facultad de Derecho of the Universitat de València, the Departamento de Derecho Internacional, Departamento de Derecho Civil and the Departamento de Derecho Mercantil Manuel Broseta Pont of the Universitat de València, the law firm Cuatrecasas, the Generalitat Valenciana, the Corts Valencianes, the Diputación Provincial de Valencia, the Ayuntamiento de Valencia, the Colegio de Abogados de Valencia and Aranzadi Publishing Company. The subsequent meeting in Oporto (December 2002) was substantially assisted by the Universidade Católica Portuguesa Centro Regional do Porto. For the week long session in Helsinki (June 2003) we were able to rely on funds from Suomen Kultuurirahasto (Finnish Cultural Foundation), the Niilo Helanderin Säätiö (Niilo Helander Founx

12 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Our Sponsors and Donors dation), the Suomalainen Lakimeisyhdistys (Finnish Lawyers Association), the Ministry of Justice and the Ministry for Foreign Affairs, the Nordea Bank, Roschier Holmberg Attorneys Ltd., Hannes Snellman Attorneys Ltd., the Department of Private Law and the Institute of International Commercial Law (KATTI) of Helsinki University. The session in Leuven (December 2003) was supported by Katholieke Universiteit Leuven, Faculteit Rechtsgeleerdheid, and the FWO Vlaanderen Fonds voor Wetenschappelijk Onderzoek (Flanders Scientific Research Fund). The meeting of the Group in Warsaw (June 2004) was substantially assisted by the Fundacja Fundusz Wspolpracy (The Cooperation Fund) and the Faculty of Law and Administration of Warsaw University. The meeting in Milan (December 2004) was supported by the Università Bocconi and its Istituto di diritto comparato, by the Milan Camera di Commercio, by the Associazione Civilisti Italiani and by the Comune di Milano. The meeting in Berlin (June 2005) was made possible by PricewaterhouseCoopers Deutschland AG, Frankfurt/Berlin; Sievert AG & Co., Osnabrück, and by Verband deutscher Hypothekenbanken e. V., Berlin. The meeting in Tartu (December 2005) was supported by the University of Tartu, its Faculty of Law, its Institute of Law and its Institute of Private Law, by the Estonian Supreme Court, the Ministry of Justice, the Tartu City Government, Iuridicum Foundation, the Law Offices Concordia, Lepik & Luhaäär, Luiga Mody Hääl Borenius, Ots & Co, Aivar Pilv, Aare Raig, Raidla & Partners, Sorainen, Tark & Co, Teder Glikman & Partners, Paul Varul, Alvin Rödl & Partner and Lextal Law Firm. The meeting in Oslo (June 2006) was made possible by the kongelige Justis- og Politidepartement (The Royal Ministry of Justice), by Sigvald Bergesen d. y., by hustru Nankis Almennyttige stiftelse, Storebrand and the law firms Wiersholm and BA-HR. The meeting in Lucerne (December 2006) was sponsored by Schulthess Publishing Company, by Schweizerischer Nationalfonds and by the Universität Luzern, the meeting in Budapest (June 2007) by Eötvös Loránd Tudományegyetem (Eötvös Loránd University), by Magyar Tudományos Akadémia (the Hungarian Academy of Sciences), by MOL Magyar Olaj- és Gázipari Nyrt (the Hungarian Oil & Gas Company) and by Szalma & Partnerei Ügyvédi Iroda (Szalma & Partners Attorneys at Law), and the meeting in Prague (December 2007) by Česká advokátní komora (the Czech Bar Association), White & Case Prague, Squire, Sanders & Dempsey, Prague, Ladislav Krym, Attorney at Law, Prague, Jan Brož, Attorney at Law, Prague and the Representation of the European Commission in Prague. Our final meeting in Athens (June 2008) had the support of the Stavros Niarchos Foundation, the National and Kapodistrian University of Athens, the Union of Greek Civil Law Jurists and the Municipality of Athens. We thank all of these organisations and institutions for the funds which they made available to us and for the extraordinary warmth of hospitality with which our hosts received us. Osnabrück, November 2009 Christian v. Bar xi

13 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Preface to this volume The following text on the law of unjustified enrichment has been the subject of deliberation by the Co-ordinating Group of the Study Group on a European Civil Code during its week-long meetings in Oxford (December 2001), Oporto (December 2002), Leuven (December 2003), Milan (December 2004) and Tartu (December 2005). Preparation for those meetings included thorough discussion with the Working Team s Advisory Council. The Working Team for its part also critically reviewed the principles which were predominantly drafted by Swann. Swann has also integrated the amendments (in some instances decided by vote) which were decided upon in the various deliberative meetings and has formulated the comments and adjusted them in the light of the continual discussion and advice. On this basis von Bar has drawn up the comparative introduction and the notes. The material for this part of the work was again provided by the members of the Osnabrück Working Team. They have carried the main burden of this research endeavour; without their contribution this Book could not have been realized. Additional notes were prepared by Age Väry LLM (Tartu) on Estonian law and by Mag. Jacek Lehmann (Poznan) on Polish law. Earlier versions of this text were also circulated to stakeholders under the CFR net exercise as part of the European Commission s contract law programme and discussed with them in May We are grateful for the responses and suggestions for improvements we received during this meeting. In April 2006, at the Academy of European Law in Trier, we had a further opportunity to discuss our draft with international experts. Legislation, case law and academic analysis have been stated as far as possible up to April However, as the completion of the Notes extended over several years, that position could not be achieved uniformly. Osnabrück, November 2009 Christian von Bar and Stephen Swann xii

14 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Short Text of Articles 1 Principles of European Law on Unjustified Enrichment Introduction 91 Chapter 1: General Article 1:101: Basic rule 181 Chapter 2: When enrichment unjustified Article 2:101: Circumstances in which an enrichment is unjustified 213 Article 2:102: Performance of obligation to third person 301 Article 2:103: Consenting or performing freely 322 Chapter 3: Enrichment and disadvantage Article 3:101: Enrichment 343 Article 3:102: Disadvantage 343 Chapter 4: Attribution Article 4:101: Instances of attribution 375 Article 4:102: Indirect representation 403 Article 4:103: Debtor s performance to a non-creditor; onward transfer in good faith 410 Article 4:104: Ratification of debtor s performance to a non-creditor 425 Article 4:105: Attribution resulting from an act of an intervener 431 Article 4:106: Ratification of intervener s acts 438 Article 4:107: Where type or value not identical 441 xiii

15 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Short Chapter 5: Reversal of enrichment Article 5:101: Transferable enrichment 445 Article 5:102: Non-transferable enrichment 461 Article 5:103: Monetary value of an enrichment; saving 470 Article 5:104: Fruits and use of an enrichment 475 Article 6:101: Disenrichment 483 Article 6:102: Juridical acts in good faith with third parties 505 Article 6:103: Illegality 511 Chapter 7: Relation to other legal rules Article 7:101: Other private law rights to recover 519 Article 7:102: Concurrent obligations 541 Article 7:103: Public law claims 545 Annexes 549

16 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Foreword Our Sponsors and Donors Preface to this volume vii x xii Text of Articles English Unjustified Enrichment 3 Bulgarian Правoi на неoiснoiвателнoiтoi oiбoiгатяване 9 Dutch Het recht der ongerechtvaardigde verrijking 15 Estonian Alusetu rikastumise õigus 21 Finnish Perusteettoman edun palautus 27 French Enrichissement injustifié 33 German Ungerechtfertigte Bereicherung 39 Hungarian Jogalap nélküli gazdagodás 46 Italian Arricchimento senza causa 52 Polish Niesłuszne Wzbogacenie 58 xv

17 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Introduction Portuguese Direito do enriquecimento sem causa 64 Romanian Îmbogăţirea faţă justă cauză 70 Spanish Enriquecimiento injustificado 76 Swedish Bestämmelser om obehörig vinst 82 Principles of European Law on Unjustified Enrichment Introduction A. The concept of unjustified enrichment law within the meaning of this Book 1. Definition and purpose of unjustified enrichment law Scope Matters not covered Nature No principle of subsidiarity A modern notion of the law of unjustified enrichment About this introduction 92 B. The national systems notion of unjustified enrichment law 8. General observations The most important distinguishing criteria Two hundred years of legal development The Code Napoléon Enrichissement sans cause The subsidiary nature of the law of enrichissement sans cause The Austrian Civil Code Modern linguistic usage Relationship between unjustified enrichment and other fields of law Malta Spain Enriquecimiento sin causa Germany Distinction between performance and non-performance condictions Issues of concurrence of actions Greece Contentious ambit of the principle of subsidiarity 104 xvi

18 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Introduction 25. Italy Priority accorded to other causes of action Portugal The subsidiary character of an enrichment claim Hungary Poland and the Czech and Slovak Republics Slovenia and Bulgaria Romania The Netherlands The Baltic States The Nordic countries Common Law England and Wales The interplay between the traditional forms of action and the modern unjustified enrichment principle Ireland Scotland 117 C. The national systems approach to the key legal issues addressed in this Book 41. General 118 (1) Prestations conferred in error Particular manifestations of this action The Code Napoléon Indu objectif Indu subjectif The concept of paiement Spain Assets, money, services Italy Austria Portugal Germany Greece Central and Eastern Europe The Netherlands The Baltic States The Nordic countries England and Wales Ireland Scotland 129 (2) Performances rendered under a contract void ab initio or subsequently with ex tunc effect General The Code Napoléon 130 xvii

19 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Introduction 63. France Return of property Tort law claims Belgium and Luxembourg Spain Interplay between the law on contractual nullity and condictio indebiti Italy Austria Portugal Germany Greece Hungary Reform of the Hungarian CC Poland, Czech and Slovak Republics, Bulgaria and Slovenia The Netherlands The Nordic countries The Baltic States Cyprus England and Wales Ireland Scotland 142 (3) Claims for expenditure consequent upon improvements made to another s property France and Belgium Spain Italy Austria Portugal Germany Greece Hungary and Romania Poland and Slovenia Bulgaria Dutch Law Baltic States Nordic Countries England and Wales Ireland Scotland 152 (4) Interferences with another s legal domain General France, Belgium, Luxembourg Infringements of incorporeal personality rights Enrichissement sans cause Spain 154 xviii

20 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Introduction 105. Italy Austria Portugal Germany Greece Hungary, Bulgaria and Slovenia The Netherlands The Baltic States Nordic countries England and Wales Ireland Scotland 161 (5) Discharge of liability owed by another person France: erroneous discharge of another s liability France: intentional payment of someone else s debt Belgium Spain Italy Austria Portugal Germany Greece Central and Eastern Europe The Netherlands The Baltic States Nordic countries England and Wales Ireland Scotland 171 D. European Community Law and PECL 133. Unjustified Enrichment law in the case law of the Courts of the European Communities Rules in PECL with reference to unjustified enrichment law 172 E. Overview of the concept infusing the text 135. Basic decisions No revival of the law on quasi-contract Incorporation of the reversal of a mistaken performance and of performances rendered on the basis of a contract void ab initio Exclusion of a contractual restitutionary regime Unjustified enrichment as a constituent of the law of obligations Application of the general law of obligations under the DCFR In particular: right to withhold performance Interplay with the PEL Ben.Int The relationship to PEL Liab.Dam 177 xix

21 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Chapter 1: General 145. Relationship to PEL Trusts Unfurling of unjustified enrichment law from a single basic norm A unitary model of unjustified enrichment law The four core elements of an enrichment claim Terminology The separate Chapters 180 Chapter 1: General Article 1:101: Basic rule A. General 1. Overview A single general norm Scope Operation only in conjunction with the other provisions of the Book Elements of the basic rule Content of the obligation; defences How the basic rule works 182 B. Parties: a person ; another 8. General Absence of need for prior connection Absence of need for direct transfer Natural persons and legal persons Persons without full legal capacity 186 C. Mode of enrichment: obtains 13. Application to both active and passive enrichment No requirement of wrongful enrichment 187 D. Content of liability: obliged to reverse the enrichment 15. Transferable and non-transferable enrichments Personal and proprietary claims 187 Notes I. A single overarching claim in unjustified enrichment law versus a multitude of discrete claims 188 II. Prerequisites of a general unjustified enrichment action 188 III. Prerequisites of specific claims to recovery, in particular the condictio indebiti 198 IV. Terminology 203 V. Burden of proof 207 xx

22 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Chapter 2: When enrichment unjustified Chapter 2: When enrichment unjustified Article 2:101: Circumstances in which an enrichment is unjustified A. Enrichments unjustified for want of legal basis or consent: para. (1) 1. Overview Absence of legal basis, not unjust factors Two alternative justifications Effect of paragraph (2) Effect of paragraph (3) Relationship to paragraph (4) Relationship to Article 2:102 (Performance of obligation to third person) Prestations by both parties 215 B. Justification under a contract or other juridical act (a) General 9. Entitlement under a juridical act Juridical act 215 (b) In particular: entitlement under a contract 11. General Valid concluded contract without a specific determination of the price Partial invalidity Entitlements not specifically enforceable Unenforceable entitlements Performance not yet due Obligation to suffer another s enjoyment Performance as condition of another s liability Rationale 219 (c) Scope of the entitlement 20. Justification as to part of enrichment only Incomplete performance Role of good faith in extreme cases Deviations from contractual terms 222 (d) Validity of the juridical act 24. General Valid contracts Rationale In particular: matters not affecting the validity of the contract In particular: donations 224 xxi

23 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:51 Insgesamt 36 Seiten Imprimiert Chapter 2: When enrichment unjustified 29. Voidable contracts not avoided Rights to withhold performance Unenforceable (but valid) contractual obligations Satisfaction of claims subject to prescription Obligations ceasing to have effect for the future only Void juridical acts Grounds of invalidity of contracts Voidable juridical acts which are avoided Grounds of avoidance of contracts Exercise of right to avoid and failure to avoid a contract Juridical acts otherwise rendered ineffective retrospectively Illegal contracts which are without effect Suspensive conditions not fulfilled 229 (e) Entitlement as against the disadvantaged person 42. Entitlement as against third party insufficient Protection of persons dealing with non-entitled third parties in good faith Discharge of one solidary debtor by another 231 C. Justification under a court order or rule of law (a) General 45. Entitlement under a court order or rule of law Court order Rule of law in general Extra-contractual obligations In particular: benevolent intervention Requirements of benevolent intervention Effect of the rule Rationale Significance of ratification Entitlement under property law rules 233 (b) Entitlement to the benefit of the enrichment under a rule of law: paragraph (3) 55. General Enrichment with liability under other rules Enrichment without liability Exclusion of enrichment claim need not be explicit Entitlement to enrichment, but subject to liability under this Book Transfer of title rules Unsolicited goods sent to or services rendered to a consumer Discharge of bankrupt Acquisitive prescription Statutory rights to encroach on property rights Further examples 237 xxii

24 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 2: When enrichment unjustified D. Consent to the disadvantage: paragraph (1)(b) 238 (a) Consent to the disadvantage 66. Meaning of consent Deliberate enrichment of another Incidental benefit to others from acts within own sphere 238 (b) Error 70. General Error of fact or law Inexcusable errors Unilateral errors Requirement of a causative error Awareness of disadvantage, but error as to terms Illustrative types of relevant error Compromises and submission to doubtful claims Mispredictions 242 (c) Absence of consent 79. Categories of enrichment without consent 243 E. Purpose not achieved; expectation not realised: paragraph (4) (a) General 80. Overview Relationship to paragraph (1) 243 (b) Conferment for a purpose not achieved or with an expectation not realised: sub-paragraph (a) 82. General Causative purpose or expectation Failure of negotiations 244 (c) The enriched persons awareness of the purpose or expectation: sub-paragraph (b) General 245 (d) The enriched persons acceptance that the enrichment must be reversed: sub-paragraph (c) General 245 Notes I. Benefits conferred on a contractual counterparty in order to fulfil an obligation pursuant to a valid juridical act 247 II. Recovery of prestations conferred to fulfil putative obligations under an avoided contract. 261 xxiii

25 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 2: When enrichment unjustified III. The recovery of prestations conferred under a contract which is rendered void on other grounds 266 IV. Resolutive and suspensive conditions 284 V. Analogous application to extra-contractual obligations 289 VI. Court order and rule of law 291 VII. Voluntary dispositions and performance rendered pursuant to a natural obligation 296 VIII. Restitution for failure of purpose 296 Article 2:102: Performance of obligation to third person A. General 1. Overview Relation to Article 2:101 (Circumstances in which an enrichment is unjustified) 302 B. Performance under obligation to a third party: para. (a) 3. General Performance of an obligation owed to a third party Rationale Exception No exception for error Third parties with a right to performance Assignees and other creditors Further applications 307 C. Incidental benefit to enriched person from performance to a third party: para. (b) 11. General 308 Notes I. No restitution where a debtor pays a third party in performance of an obligation to the creditor 309 II. Restitution where a debtor pays a third party in performance of an obligation under an invalid contract? 315 xxiv

26 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 3: Enrichment and disadvantage Article 2:103: Consenting or performing freely Absence of free consent: incapacity, fraud, threats and unfair exploitation 1. General Overlapping grounds for absence of free consent Meaning of fraud, coercion, threat and unfair exploitation Source of the fraud, threat or unfair exploitation Rationale Scope of the two paragraphs 323 Notes I. Voluntary transfer of property 324 II. Performance based on an obligatio naturalis 329 III. Fault of the disadvantaged person as a legal justification for the retention of the prestation 333 IV. Performances to a third party based on a legally vitiated contractual intention 339 Chapter 3: Enrichment and disadvantage Article 3:101: Enrichment Article 3:102: Disadvantage (Article 3:101 and 3:102) A. General 1. Twin provisions Overview Relation to Chapter 4 (Attribution) Relation to other Chapters 344 B. Increase in assets or decrease in liabilities: paragraph (1)(a) of Article 3: Change in assets or liabilities, not change in value Meaning of asset Criteria Examples Mode of increase in assets Decrease in liabilities 346 xxv

27 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 3: Enrichment and disadvantage C. Receipt of a service or having work done: paragraph (1)(b) of Article 3: General; rationale Change in patrimonial balance immaterial Composite notion of service or work Notion of service Services by agreement, but without a binding contract Unsolicited services Services provided unwittingly Incidental benefits in pursuit of own interest 349 D. Use of another s assets: paragraph (1)(c) of Article 3: General Assets capable of use Irrelevance of authority of right-holder to license use Irrelevance of right-holder s intention to use or commercialise use Irrelevance of utility to enriched person Meaning of use An intentional act Displacement of another s use Intangible property rights Apparent infringements Mode of use Interferences not amounting to a use 355 E. Non-merger of enriched person s concurrent or subsequent disadvantage with the enrichment: paragraph (2) of Article 3: General Enrichment as improvement to net wealth Enrichment on an itemised approach Comparison Contemporaneous and subsequent disadvantage 357 Notes (Articles 3:101 and 3:102) 358 I. Establishing an enrichment and a disadvantage: balance-sheet test or itemised approach? 358 II. Instances of enrichment 365 III. Disadvantage 371 xxvi

28 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 4: Attribution Chapter 4: Attribution Article 4:101: Instances of attribution A. General 1. Overview Particular instances of attribution Non-exhaustive list Other scenarios Variety of possible attributions Relation to other Chapters 376 B. Direct transfer: paragraph (a) 7. An asset of the disadvantaged person Meaning of asset Transfer by the disadvantaged person 377 C. Rendering a service or doing work: paragraph (b) 10. General; meaning of service and work 377 D. Use of another s assets: paragraph (c) 11. Meaning of asset Meaning of use Infringements of rights and legally protected interests 377 E. Improvement of another s assets: paragraph (d) 14. Meaning of asset Asset of the enriched person 378 F. Discharge of another s liability: paragraph (e) 16. Meaning of liability 379 Notes I. Transfer of assets 379 II. Particularities in the rendering of services 382 III. Use of another s assets and rights 386 IV. Improvement of another s asset 393 V. Discharging another s liability 399 xxvii

29 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 4: Attribution Article 4:102: Indirect representation 1. Overview Indirect representation The problem of the principal who is not a party to the transaction Internal relationship of representative and principal Insolvency or fundamental non-performance of the representative 405 Notes 405 Article 4:103: Debtor s performance to a non-creditor; onward transfer in good faith A. General 1. Overview A particular instance of attribution 411 B. The disadvantaged person s loss of a right against the third person 3. General Partial loss of a right Rules protective of a third party Third party performing binding instructions Disappointed expectation insufficient Subsistence of right precludes application without ratification Reduction in value of right insufficient Effect of insolvency of debtor Incurring a debt as an alternative to loss of a right 416 C. In particular: onward transfer in good faith: paragraph (2) 12. Onward transfer as specific application 416 Notes I. Basic case: restitution under unjustified enrichment law for performance rendered in discharge of an obligation to a supposed creditor 416 II. Persistence of a claim despite disenrichment through gratuitous disposition 423 xxviii

30 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 4: Attribution Article 4:104: Ratification of debtor s performance to a non-creditor A. General 1. Overview Rationale 426 B. Scope 3. Payment of debts and other performances Possible exclusion in cases of insolvency 426 C. Ratification 5. Entitlement to ratify Effect of ratification 427 Notes 428 Article 4:105: Attribution resulting from an act of an intervener 1. Overview A general principle and a specific application Typical cases A particular instance of attribution Meaning of use Unauthorised collection of another s debt Deprivation and accrual 433 Notes 434 Article 4:106: Ratification of intervener s acts A. General 1. Overview Rationale Meaning of use 439 xxix

31 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 5: Reversal of enrichment B. Ratification 4. Authorisation of the disposition or use Justification of the third party s enrichment No justification of the intervener s use of the asset Law on liability for non-contractual damage 440 Notes 440 Article 4:107: Where type or value not identical 1. Overview Non-equivalence of enrichment and disenrichment immaterial 442 Notes 443 Chapter 5: Reversal of enrichment Article 5:101: Transferable enrichment A. General 1. Overview 445 B. Transfer: paragraph (1) 2. Transferable asset Place of performance 446 C. Election to pay monetary value instead: paragraph (2) 4. Election to pay value Uniqueness of the asset Election by the enriched person Monetary value 448 D. Liability to pay monetary value transfer no longer possible: paragraph (3) 8. General Modifications of liability to pay the monetary value of the enrichment obtained Partial disposition, loss or destruction of the enrichment 448 xxx

32 {Sellier}PEL/PEL_8_PEL_Unj_Enr/daten_3b2/PEL_Bd_8_titelei.3d :16:52 Insgesamt 36 Seiten Imprimiert Chapter 5: Reversal of enrichment E. Election that substitute be transferred; good faith: paragraphs (4)-(5) 11. General Election Rationale where the enriched person is in good faith Rationale where the enriched person is not in good faith Good faith at the time of loss or disposal Meaning of good faith Restriction of the enriched person s right of election Apportionment of substitute Rationale for apportionment 451 Notes I. The claim to restitution of the asset obtained 452 II. Acquisition of a substitute for the enrichment 455 III. Definition of good faith 458 Article 5:102: Non-transferable enrichment A. General 1. Overview Enrichments which are not transferable assets 462 B. Basic liability: paragraph (1) 3. Monetary value as maximum liability Monetary value 462 C. Reduced liability: paragraph (2) 5. Reduced liability Measure of liability: saving Circumstances in which liability is reduced Rationale 463 D. Intermediate liability: paragraphs (3) and (4) 9. Measure of liability under paragraph (3) Intermediate liability Rationale A price or value genuinely fixed 464 Notes 465 xxxi