Unjust Enrichment in Argentina: Common Law in a Civil Law System

Abstract

The receipt of unjustified enrichment is recognized nearly everywhere as the basis for some sort of legally enforceable obligation to make restitution. The process by which concrete substance has been supplied to this vague concept is an interesting illustration of law formation. Naturally, the manner by which the notion of unjustified enrichment is transformed from a moral ideal to an effective legal principle varies from one society to another in accordance with the available institutional processes. Anglo-American lawyers are, of course, familiar with the route by which our law came to recognize unjust enrichment as an independent source of obligation through the gradual extension by fiction and analogy of certain common law and equitable remedies. Legal force was given to the principle by the fact that courts would grant relief. Recognition that the effective, substantive principle was really unjust enrichment came with the realization that the relationships involved in some of the cases for which the courts were ordering contract and trust remedies had only peripheral connections with contract or trust, if indeed they had any such connections at all. Through the common law's characteristic inductive methods of analysis, the contours of the substantive principles underlying the cases were ultimately exposed, although it cannot be said that the refinement and elaboration of these principles is complete. The formation of the law of unjust enrichment in countries whose civil law is codified necessarily has followed a different course. Some civil codes do expressly recognize unjust enrichment as a general source of obligation, but many do not, including notably the French Code Civil. The difficulties encountered by the French courts in the process of, first, recognizing the existence of the obligation based on unjust enrichment without express code authority and then trying to keep it contained have been described by Dawson.1 The problem is that the role assigned to the judiciary in such countries tends to inhibit courts from exercising the kind of creative influence we expect from ours. Judicial decisions normally have no binding effect on later litigation between different parties, and so