Cass. fr. 15.12.1998, Enrichissement Sans Cause

Abstract

Based on the equitable principle that prevents a person from enriching themselves at the expense of others, the theory of unjust enrichment is only accepted in French law under certain conditions. The interest of the decision handed down by the first civil chamber of the Cour de cassation on 15 December 1998 is that it clarifies one of the more controversial of these conditions: the fault of the impoverished party. In that case, a consumer asked a professional for a quote for the repair of a television antenna. Without respecting the terms of his engagement, the latter did some work on the television and then claimed payment. His claim was rejected by the tribunal d'instance which noted that, in the absence of agreement, no contractual obligation could have arisen. Nevertheless the judge required the consumer to pay compensation because he considered that the advantage obtained by him constituted unjust enrichment. The appeal in cassation argued, nowever that the action de in rem verso could not be relied on when the impoverishment was the result of a fault on the part of the impoverished party, fault which could be found in the failure to comply with the terms of an engagement. Now, in this case the professional had been engaged to provide a quote prior to doing any work and had, in indifference to the terms of his engagement, proceeded on his own initiative to change the television antenna. This contention was accepted by the Cour de cassation which, under a reference to Article 1371 of the Code civil and the principles of unjust enrichment, criticised the decision of the lower court judges. In this respect the decision of 15 December 1998 seems faithful to recent case law trends which, in order to evaluate the relevance of the fault of the improverished party, distinguish cases according to the seriousness of the fault. The view is taken that if the impoverished party has merely been negligent or careless, this is no obstacle to the exercise of the action de in rem verso but can also serve as the basis for the liability of the impoverished party if he has caused damage to the enriched party. By contrast, in cases of gross negligence of intentional harm, the possibility of an action de in rem verso is foreclosed to the impoverished party who is at fault. In applying these principles, it seems justified to refuse the action to a business that has undertaken unrequested repair work which has not been accepted, because the business must necessarily be aware of the risk of impoverishment. It remains the case that this distinction is still not followed by all courts, and notably by the commercial chamber of the Cour de cassation, which has concluded, in a decision of 18 May 1999, that an error on the part of the impoverished party prevents him from seeking restitution of the loss suffered. The commentaries that follow look at these questions and analyse the decision from the point of view of the relevant rules of domestic law of several European countries: the laws of France, Switzerland, Belgium, the Netherlands, Germany, England, Italy, Spain, Portugal and Greece.