Unjust Enrichment Research Articles

Why the public might doubt the idea of unjust enrichment

Restitutionary claims are important. They are even relevant to such scenarios as restitution of improperly collected taxes and mistaken payments. However, what is the organising idea behind these claims? This question is critical for clarifying the existing law and setting the scene for legal reform. For the first time, this article empirically tests the public’s perception of the current predominant rationale behind restitutionary claims – the notion of unjust enrichment. Since the findings question whether the public supports this rationale, the article joins the growing volume of literature which is sceptical of unjust enrichment.

Islamic Law and Human Trafficking: The Ethical and Legal Frameworks

Human trafficking represents a profound violation of human rights, prompting critical examination across both Islamic and Western legal traditions. This study compares these perspectives, identifying shared values and key distinctions, with particular emphasis on the ethical and punitive aspects of Islamic law related to exploitation. Using a normative legal research methodology, this research investigates the role of Islamic law (Sharia) in countering human trafficking, viewed as a contemporary form of slavery. Through an analysis of Sharia principles, such as the sanctity of human life and the comprehensive prohibition against exploitation, this study reveals preventive strategies embedded within Islamic jurisprudence. These strategies include the elimination of exploitation sources and the prohibition of unjust enrichment at the expense of vulnerable populations. The study further advocates for an integrated approach that addresses both the physical and moral dimensions of human protection. In conclusion, this research affirms Islamic law as a comprehensive framework that aligns with international human rights efforts, notably in its decisive opposition to human exploitation and commodification.

INDENIZAÇÃO PUNITIVA NO CÓDIGO CIVIL BRASILEIRO: A REPETIÇÃO DE INDÉBITO EM DOBRO DO ARTIGO 940 COMO INSTITUTO JURÍDICO EQUIPARADO

ABSTRACT: Conceived within the Anglo-American tradition of the 18th century, punitive damages emerge as a distinct form of sanction intended to reflect the role of civil liability through a modern perspective. Originating from case law and customary practices, this foreign institution underscores the inadequacy of compensatory and restitutive functions in restoring the status quo ante in cases of bad faith or significant culpability of the offender, particularly when the wrongdoing stems from the pursuit of personal gain. Thus, the details of the case become crucial in assessing the agent’s conduct, with a rigorous examination of intent. By adopting the Theory of Deterrence, civil law acquires a preventive character, countering the recurrence of egregious harmful acts within social interactions, aiming to safeguard objective good faith in private relations. This article, therefore, traces the historical roots and conceptual evolution of this model over time, highlighting its distinctions from traditional compensatory methods, under the principles of unjust enrichment and full reparation. Finally, the study explores the potential equivalence to the double recovery provision under Article 940 of the Civil Code. Through a theoretical and deductive approach, utilizing qualitative, foundational, explanatory, and bibliographic methods, and viewed through the lens of comparative law, the initial hypothesis is confirmed, with reservations.

Unjust enrichment in law and equity

In Moses v Macferlan, Lord Mansfield used money had and received, a common law money count, to provide relief in a case where an action’s outcome failed to align with the actor’s intention. In the First Restatement of Restitution, Warren Seavey and Austin Scott gathered together all cases, quasi-contractual and equitable, under the single principle that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ These two influential acts of fusion between common law and equity have caused a great deal of confusion in the scholarship and jurisprudence on unjust enrichment. With the fundamental differences between quasi-contract and equitable unjust enrichment obscured, scholars and judges have struggled to find the single principle or core case that unifies liability in what is now called the law of unjust enrichment. I argue that we can resolve the puzzles of unjust enrichment by rejecting the fusionist claims that started them all – that is, by distinguishing cases of quasi-contract (the common law money counts) from cases of equitable unjust enrichment – and by recognizing that each has a distinctive normative foundation. Quasi-contract, like other common law doctrines, is grounded in respect for the freedom and equality of agents conceived as beings with the capacity for free choice. Quasi-contract is concerned with the objective significance of external acts like requests and agreements on terms; it is not concerned with the frustration of the plaintiff’s particular purpose in acting. Equitable unjust enrichment, like other equitable doctrines that attend to mistakes, expectations, and intentions, is grounded in concern for individual autonomy. It recognizes that a court, as a public institution attuned to law’s self-imposability, cannot enforce an alienation of property with indifference to the way in which it may fail as an expression of the individual’s purposes and reasons for action.

Family lawyers on cohabitation and judge-made law

This article advances debates on the limits of judge-made law to palliate legislative failure to respond to changing practice. Canadian judges have adjusted the general private law to address the situation of unmarried cohabitants. In Kerr v Baranow, the Supreme Court of Canada continued its adaptation of unjust enrichment to this end. The article reports on the first empirical inquiry into how the judgment is operating, including outside the courtroom. Interviews with family lawyers in Quebec show that bringing claims under the adapted doctrine is complex and costly. Variable and unpredictable outcomes impede fair and efficient private ordering. Cohabitation agreements do not seem a satisfactory solution. The study highlights shortcomings in the leading Canadian judgment, which recognizes some cohabiting couples as partnerships but stops short of presuming an equal sharing of gains during the union. But, since the participating lawyers pointed to factors that would reduce the efficacy of reform by judges or by legislatures, the study does not yield a broad preference for legislative reform over judicial reform.

The Doctrine of Election U/S 35 of the Transfer of Property Act, 1882: Development & Contemporary Relevance

The principle of election is regulated by section 35 of the Transfer of Property Act 1882 and forms a doctrine of equity whereby there must be a choice of one inconsistent right or claims arising under the same instrument conferred by a beneficiary. The principle of election is regulated by section 35 of the Transfer of Property Act 1882. It forms a doctrine of equity whereby there must be a choice of one inconsistent right or claim arising under the same instrument conferred by a beneficiary. The doctrine keeps one from receiving the fruits of any legal document and refusing its obligations simultaneously. This doctrine is derived from the English equity law and adopted to India. It has developed into ensuring equity and justice in property, including wills, settlements, and deeds. Election refers to the necessity of electing between two conflicting or alternative rights conferred by the same instrument, where both rights cannot be enjoyed simultaneously. It underlines that the one who benefits under an instrument also bears the burden that follows it. This doctrine does not allow beneficiaries to take in favorable provisions but reject adverse ones thereby ensuring consistency and fairness. The judgment in the case of C. Beepathuma v. Viduri Shankar Narayana Kadambolithya is AIR 1965 SC 241, highlighting that the done must elect for or against the instrument. It is highly relevant to the settlement of property litigations as it averts unjust enrichment, in that a beneficiary must receive both the fruits of rights and liabilities created through a legal document. The doctrine was developed on the foundation of equity and is of high importance for the observance of justice in law concerning property as it forces recipients to either abide completely by the tenets of transfer or to relinquish the benefit.

Правовая природа компенсации за нарушение исключительного права

The article examines the legal nature of compensation, which is the most popular method of protecting an exclusive right in Russian judicial practice. As a result of a consistent analysis of each of the types of compensation for violation of an exclusive right it is concluded that compensation does not have a single legal nature. Compensation in a fixed amount and compensation in the form of double cost of the right of use are measures of civil liability and are restorative in nature with a moderately punitive beginning. Compensation in the form of double cost of counterfeit goods is of a mixed nature combining elements of an obligation from unjustified enrichment and responsibility.

Should No Further Books Be Written on the Law of Unjust Enrichment?

Should No Further Books Be Written on the Law of Unjust Enrichment?

Pre-trial procedures in disputes on the protection of intellectual rights

Pre-trial conflict resolution procedures do not cease to be in demand, and the development of their legal regulation does not lose its relevance. Disputes on protecting intellectual rights are no exception, and most countries have established special pre-trial procedures. However, specific difficulties emerge when applying the legal norms related to pre-trial conflict resolution procedures in disputes on the protection of intellectual rights, which can be clearly demonstrated while studying the Russian experience using the mentioned pre-trial procedures. The paper aims to analyze and define the peculiarities of pre-trial procedures in disputes on protecting intellectual rights in Russia. Using systemic approach, as well as comparative legal and formal legal analysis allowed author to define the peculiarities of pre-trial procedures in disputes on the protection of intellectual rights in the Russian Federation: special requirement on the mandatory pre-trial claim procedure is a departure from the general approach, according to which such procedure is required for disputes arising from transactions or unjust enrichment, and is probably due to the complexity of these disputes; in the administrative pre-trial procedure of dispute examination in the Chamber of Patent Disputes the parties have a wide enough set of procedural rights and opportunities, and the procedure is quite close to the judicial procedure, and in some respects even exceeds it.

Unjust enrichment in Iraqi civil law

Unjust enrichment in Iraqi civil law

Особенности защиты прав ветеранов труда при назначении им отдельных социальных выплат

The article examines theoretical and practical problems that arise from the incorrect application of legislation on veterans, incorrect interpretation of the rules defining measures of social support for citizens who have a special legal status — Labour Veteran. As a result of law enforcement, the grounds and procedure for assigning appropriate payments to a labour veteran, depend not on the status of such a citizen, but on the territorial principle which determines support measures at the citizen’s place of residence, which leads to a violation of his legal rights. In practice, a clear manifestation of the loss of all social benefits intended for a labour veteran occurs if he changes his place of residence and the social protection body, referring to the legal norms on unjust enrichment, claims for the recovery of amounts paid to him as measures of social support. The author has proven that social support measures should apply to all veterans, regardless of their place of residence. This meets the requirements of the legislation on veterans and the essence of the state’s social policy.

Налоги по понятиям

Unjust enrichment of the budget at the expense of the property of audited taxpayers is a consequence of falsely understood interests of the civil service, realised with the help of normatively undefined ‘concepts’, introduced into circulation, including with the help of the highest courts. The author of the article offers a legal way to solve this problem.

집합건물의 대지에 대한 공유물분할 청구

The Site for condominium buildings was shared between those who had a section for exclusive possession in the building and those who did not, and the latter plaintiffs filed a claim for for Partition of the Site and a return of unjust enrichment. The court of first instance disallowed the claim for division by the co-owner in accordance with Article 8 of the ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS and only accepted the claim for return of unjust enrichment. However, the court of second instance and the Supreme Court recognized not only the claim for return of unjust enrichment but also the division method by total value compensation. This court decision can be judged positively in that the basis for the existence of the complex and living relationships can be maintained, and the dispute has finally been resolved. With this decision of the court, the prohibition of claim for partition by co-owner of site pursuant to the above provisions can no longer play a role. This is because the court is not bound by the division method of Article Jointly Owned, and, contrary to academic theory, considers division by total value compensation as a division in kind and is free from the restrictions of Article 269, Paragraph 2 of the Civil Act. In this case, the sectional owners refused to acquire ownership of the Site in question, but the court decided to divide by total value compensation, thereby acquiring the plaintiffs' shares and paying a considerable price for the shares. Since it is unfair to treat the division method by total value compensation as simply a division in kind. In order for the court to decide on this method, it must be subject to restrictions equivalent to splitting the price by official auction in accordance with the purpose of Article 269, Paragraph 2 of the Civil Act. In a case such as this, rather than resolving it as a problem of partition of article jointly owned, it would be desirable to resolve this issue legislatively so that people like the plaintiff can request that the sectional owners purchase their shares.

Unjustified Enrichment as a result of Turnover of Objects of Information Law

Not being an object of civil rights (Article 128 of the Civil Code of the Russian Federation), information has acquired objective marketability that does not limit itself, due to its value for certain persons, to using the construction of a contract for the provision of paid services for the legal regulation of emerging legal relations. The paper examines the legal nature of information and its historical and modern regulation, examines cases of illegal access to information and its use for the benefit of an unscrupulous person and suggests the possibility of applying the institute of unjustified enrichment by analogy. It is proved that the use of actio de in rem verso as an institution of unfair enrichment is the most appropriate for regulating the legal relationship under study. It is proposed to use the named institution up to the proposed reform of civil legislation in order to give information the properties of a full-fledged object of civil rights. It is argued that the reform of civil legislation regarding the inclusion of information in the objects of civil rights is long overdue and is predetermined by the objective development of the information society. Moreover, the expansion of digitalization and digital transformation of participants in civil law relations, including the state, leaves no doubt that such changes are relevant, and the courts, as soon as such an opportunity arises, need to begin applying new legislation in this regard.

Peculiarities of regulation of various types of non-contractual obligations in the field of international private law

The article reveals certain types of non-contractual obligations (NCO) in the field of private international law (PIL). The common features and differences between certain types of NCO in Ukraine and other countries of the Romano-Germanic legal family through the usage of the comparative legal method are described. The article reveals such types of obligations in PIL as: tort/delict obligations; obligations arising out of unjust enrichment; obligations arising out of damage caused by a product, work, service; culpa in contrahendo; negotiorum gestio. The article substantiates that NCO arise, first of all, between persons who are not in a contractual relationship, or between persons who are bound by a contract, but the damage is not caused in connection with a violation of contractual obligations. The article reveals the main provisions of conflict regulation of NCO. The issue of refusal to use the general collision binding of the place of harm (lex loci delicti commissi) is being studied. Nowadays, instead of that collision binding, which was originally used for each type of non-contractual obligation, several alternative collision bindings are used. In addition to the law of the place where the tort was committed, the article also reveals the features of using such collision bindings as the citizenship of the parties or the place of residence of the parties of the legal relationship, the place of release of the goods, the place of registration of the vehicle, etc. The article highlights some aspects of the recent reform of civil legislation and PIL, in particular. The root cause of the reform and renewal of domestic legislation in various areas, which is caused by the European integration processes taking place in Ukraine in recent years, is revealed. The article substantiates the active recodification of civil legislation introduced by the Government of Ukraine, aimed at eliminating certain shortcomings and contradictions in national civil legislation and harmonizing it with the legislation of the European Union. The article places special emphasis on the need to update national legislation and bring it into line with European standards for democratization and liberalization of all spheres of life.

The Injunction to Pay under a Bank Guarantee as a Procedural Means of Interference in Guarantee Legal Relations

The paper analyzes the balance between the procedural institution of acceptance of interim measures by the courts and the material institution of ensuring the fulfillment of obligations by issuing independent (bank) guarantees. The author raises the issue of the intrusion of interim measures into the independent nature of the guarantee relationship and justifies the approach according to which such interim measures may be permissible if there are signs of abuse of the right by unscrupulous beneficiaries. The paper analyzes the practice of both arbitrazh courts and courts of general jurisdiction and the approaches of courts to the adoption of interim measures prohibiting banks from making payments under a bank guarantee. The author also touches upon the issues of the standard of proof when courts apply interim measures in guarantee relations. In conclusion, it is substantiated that alternative methods of restoring the rights of the principal or guarantor in the form of collecting unjustified enrichment from an unscrupulous beneficiary may not be effective enough.

Liability of Perpetrators of Road Accidents and their Insurers for Damages Related to the Post-Accident Clean-Up. Remarks on the Supreme Court's Resolution of 20 January 2022, III CZP 9/22

The article addresses the issue of the liability of the motor vehicle owner (the perpetrator of a road accident) and the third-party motor liability insurer for damages related to the costs of post-accident road cleaning. It is a polemic with the concept of a broad understanding of the scope of liability of the perpetrator and the insurer, presented by the Supreme Court and some legal doctrine, because it contradicts, among others, the statutory catalogue of obligations imposed on (particularly public) road administrators. Moreover, arguments have been advanced for a different interpretation of the terms "property damage" and "destruction" as well as the unjustified enrichment of the road administrator seeking cost refund from the perpetrator or the third-party liability insurer.

3자간 등기명의신탁에서 명의수탁자의 임의처분 시 매도인의 귀책사유 존부와 부당이득반환청구권의 귀속주체 - 대법원 2021. 9. 9. 선고 2018다284233 전원합의체 판결 -

The Korean Supreme Court issued an en banc decision 2018Da284233. The issue is who can claim a right to unjust enrichment in a case where the title trustee disposed of the title trust immovable in the title trust involving a third party. The majority opinion held that the title trustor can claim a right to unjust enrichment, whereas the dissenting opinion held that the seller can claim. The majority of published commentaries on this judgment are against the majority opinion of the judgment in question, and in favor of the dissenting opinion. However, as with the majority opinion, the view that the trustee can seek the return of unjust enrichment is reasonable. The reason for this is as follows. First, it is because the seller cannot be held responsible for the impossibility of performance of the trust real estate. In order for the seller to be held accountable, circumstances must be recognized that the seller may have cooperated illegally, such as transferring the registration despite knowing the title trust. However, as an average person, the seller cannot distinguish title trust from similar but legally permissible concepts such as interim registration. Therefore, even if the seller directly transferred the registration to the title trustee, it cannot be seen that he cooperated while knowing the facts of the title trust, so the cause cannot be recognized. Therefore, the title trustee cannot hold the seller liable for default, and as a remedy for the title trustee, it is reasonable to acknowledge the claim for return of unjust enrichment against the title trustee. Furthermore, since the title trustee's position to occupy, use, and profit from the entrusted real estate is not separable from the buyer's position in the sales contract, the title trustee concurrently serves as an unregistered buyer who takes delivery of the object of sale and uses and profits from it. The status of an unregistered buyer includes the right to use and profit as well as the right to legally dispose of and transfer, and is much stronger than a claim for simple possession. Therefore, an unregistered purchaser cannot be seen as a simple creditor, and it is appropriate for a title trustor who concurrently holds the status of an unregistered purchaser to recognize independent allocated profits. Therefore, the majority opinion is valid.

가상자산의 物件性 여부 및 물권법 법리에의 포섭 가능성에 관한 논의

Whether virtual assets can be regarded as a ‘thing’ or ‘property has been widely discussed, because it can be a prerequisite to whether legal theories in property law and in bankruptcy law would be applied to virtual assets. Although financial regulatory Acts on virtual asset law are being legislated around the world, few countries have legislated how virtual assets will be understood in civil law. In this situation, Liechtenstein has in 2019 and Switzerland has in 2021 partially regulated civil legal issues of virtual assets in their Acts and UNIDROIT adopted its principles on digital assets in 2023. Liechtenstein’s TVTG(Token- und VT-Dienstleister-Gesetz) does not recognize virtual assets (tokens) as a thing, but restricts the concept and legal effects of tokens only within the Act. The Act distinguishes between de facto powers of disposition and justified right of disposition, but a person who has de facto power over a VT-key is considered to have legitimate right over the tokens associated with that key. In addition the disposal of tokens does not depend on the existence of a legal title (principle of abstraction), while the so-called causality principle prevails in Liechtenstein property law. If a token is disposed of without a legal title or if an initially existing legal title later ceases to exist, the legal transaction must be rescinded ex-nunc in accordance with the law of unjust enrichment. Considering the characteristics that the VT-system fulfills the registration function and has a high level of reliability, the possibility of acquisition in good faith is recognized. A significant part on civil legal issues in the DLT(Distributed Ledger Technologie) Act of Switzerland relates to ‘register uncertificated security’ (Registerwertrecht) which dematerializes securities using distributed ledger technology. The Swiss legislators additionally reviewed whether cryptocurrency could be considered a thing and concluded that it is unreasonable to extend the concept of natural forces to cryptocurrencies such as Bitcoin and that legal status on the blockchain can be claimed only to the participants in the blockchain system. Considering that cryptocurrency is not recognized as movable property, it is recognized as a type of intangible property. However, the Act recognized the right to separation for crypto-assets in general. This provision is enacted because it was practically necessary to determine whether crypto-assets belong to the bankruptcy estate when the wallet provider goes bankrupt. The DLT Act does not recognize general crypto-assets as a thing, but the right to separation of crypto-assets is recognized under certain conditions. The UNIDROIT Principles treat digital assets as being susceptible to being the subject of proprietary rights, without addressing whether they are considered ‘property’ under the other law of a State. The Principles don’t prescribe the specific requirements for a valid right of ownership in a digital asset or for it’s valid transfer. Instead, the principles provide a detailed definition of control, which assumes a role that is a functional equivalent to that of ‘possession’ of movables. However, ‘possession’ in this context is a purely factual matter and not a legal concept. But the concept of control serves as a necessary requirement for qualifying for protection as an innocent acquirer of a digital asset and as a method of third-party effectiveness and a basis of priority of security rights in a digital asset. It should be noted that a security right in a digital asset that is made effective against third parties by control has priority over a security right in the digital asset that is made effective against third parties only by a method other than control. A proprietary right in the digital asset remains effective on insolvency, but difficulties are expected if the insolvent person might refuse to reveal the password. In conclusion considering the char

2023년 민법(물권법 및 채권법) 중요 판례 평석

In this paper, among the major precedents of the Supreme Court on civil matters in the year of 2023, I analyzed the meaning and contents of 7 important decisions (focused on the law of real rights and claims). The Supreme Court explicitly ruled for the first time that in the so-called ‘mutual deprivation of the possession of his/her property,’ the claim for recovery of possession by the preceding encroacher could not be allowed. The Supreme Court repeatedly has held that claims by road site owners to local governments for land handover, road demolition, and traffic closures are, in principle, an abuse of rights. With respect to the claims of unjust enrichment, the Supreme Court also repeatedly states the legal principles of abandoning the exclusive right to use and profit. Although the legal principle is controversial in academia, in practice, it is firmly established as a useful legal principle in determining whether a claim for return of unjust enrichment is accept or not between the road site owners and the local governments. The Supreme Court explicitly ruled for the first time that a third party who acquired ownership after the unauthorized rental act by a person having a right of retention can also exercise the right to demand the extinction of the right of retention. In the past three years, there have been three Supreme Court rulings, including the target judgment in 2023, on issues that have been mainly disputed in academic fields regarding the right to demand the extinction of the right of retention, and it seems that many of the major issues regarding the right to demand the extinction of the right of retention have been settled through precedents. For the second time since 2017, the Supreme Court applied the ‘high probability theory with respect to obligee’s right of revocation’ to determine whether a claim based on continuous product supply contract arising after a fraudulent transfer is a claim protected by the law of revocation of the fraudulent transfer.