The Concept of Non-Contractual Obligations: Rethinking the Divisions of Tort, Unjustified Enrichment, and Contract Law

Abstract

The article proposes a concept of ‘non-contractual obligations’ as a fundamental legal category for European private law. Non-contractual obligations are an internally coherent part of the law of obligations, and they are fundamentally different from contractual obligations. Unjustified enrichment and tort law should therefore not be treated as independent or opposed types of obligations. A fundamental aspect of this conception is that ‘unjustified enrichment’ should not be misunderstood as a distinctive legal category; rather, it is a reason for liability that is functionally and structurally comparable with concepts such as fault or individual responsibility which apply throughout the legal system as a whole. To clarify the distinction between contractual and non-contractual obligations, the interplay of contractual and non-contractual rules and principles in borderline areas such as precontractual negligence is analysed.