Subsidiarity of the Action for Unjustified Enrichment - French Law and Dutch Law: Different Solutions for the Same Problem

Abstract

The beauty of the enrichment action is that it offers well-trained lawyers a useful tool for filling gaps in our legal system. Enrichment actions should only be grounded on the basis of positive arguments within the system. I will argue that in most cases where laymen (or judges for that matter) at first sight think that an action based on unjustified enrichment could and should succeed, the well-trained lawyer would deny such an action. In most developed legal systems there are specific techniques to make sure that the legal professional is able to decide which claim must be granted and which claim must be denied. In this paper the focus is on two specific requirements for the action of unjustified enrichment: the French principle of subsidiarity and the principle of impoverishment as applied in Dutch enrichment law. In both French and Dutch law the understanding and interpretation of the two techniques is dependant on the basic assumption about the role of the action for unjustified enrichment within the legal system. Is it an ultimate remedy for situations which are not covered by the ?normal? rules of the system or is it an equity device which can alter the normal application of the rules of the legal system?