Unjust Enrichment Research Articles

The Exclusive Rights of Licensees in Parallel Import Practices

Parallel imports are one of the most interesting and unique phenomena of international trade. On one hand, it applies competition law, while on the other, trademark law and the customs law also apply in this activity. Parallel imports occur when genuine goods are imported in parallel (concurrently) to goods imported by a licensee. These parallel imports are then sold at a cheaper price than that of the goods of the licensee. This parallel import activity is inconsistent with the exclusive rights that the licensee receives under the licensing agreement it makes with the owner of the trademark. This exclusive right is essentially monopolistic, entitling the licensee to prevent all parties with the commercial intention of selling the same or similar goods as their own. However, the right to monopoly is limited for the sake of a fair competition. The licensee can sue to get compensation in parallel importation base on unjust enrichment principle. Moreover, parallel importation can be inhabited by enforcing procedural and administration regarding import of goods such as, Indonesian national standard and label in bahasa

Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment

First National Bank of Southern Africa v Perry, Nissan South Africa v Marnitz NO and Absa Bank v Lombard Insurance, as well as Trustees, Estate Whitehead v Dumas and Absa Bank v Moore, together amount to a concerted attempt on the part of South African courts to provide victims of the theft of incorporeal money with adequate redress. However, it has proved difficult to find a satisfactory juristic explanation for this series of decisions. This chapter shows that a model organised around the extension of the vindicatio to incorporeal money is unworkable. Instead, having considered briefly a second possibility, namely, the English constructive trust, this chapter advances an analysis of the plaintiff’s claim to the stolen money solely in terms of the non-consensual enrichment (that is, enrichment other than by deliberate conferral) of the defendant at their expense. Apart from its superior explanatory power, such an approach offers a blueprint for future development, insofar as it opens the way to the recognition of a secured claim where the proceeds of stolen money have been used to discharge the thief ’s pre-existing secured debts: the doctrine of subrogation to extinguished rights. This chapter closes by considering the implications of these conclusions for wider debates about the proper size and shape of the law of unjust enrichment.

The Systematic Relevance of Unjust Enrichment between Public Law and Civil Law: Focusing on Liability and Scope of the Benefit Recipient in Triangular Legal Relationship

The Systematic Relevance of Unjust Enrichment between Public Law and Civil Law: Focusing on Liability and Scope of the Benefit Recipient in Triangular Legal Relationship

Regspraak: Einde van gemeenskaplike boedel van ’n egpaar getroud in gemeenskap van goed en aanvang van uitwissende verjaring van tersake vorderinge val saam

But for an extraordinary order for a division of the joint estate stante matrimonio under section 20 or 21 of the Matrimonial Property Act 88 of 1984, the default joint estate of spouses married in community of property will come to an end with the demise of the marriage. This is either with the death of the firstdying spouse or by an order of the divorce court. It is impossible to extend the joint estate beyond these moments. With the end of the joint estate, the erstwhile spouses (or the estate of the demised spouse) are entitled to claim half of the value of the erstwhile joint estate. If the parties are unable to reach an amicable agreement to this end, a liquidator will be appointed to finalise the division of the assets. As from the end of the marriage, the former spouses have separate estates. Any new acquisition, gift, inheritance or income acquired after that date falls into the newly founded separate estate of the holder, and the other party has no claim to share in these assets. In Koko v Koko the respondent was married in community of property to Mr Koko in 1979 but that marriage ended in divorce by court order in 2001. The respondent left the previous marital home that was registered as joint property in the names of both spouses and retained inter alia some movable property from the erstwhile joint estate. Mr Koko remained in the house and continued to pay all rates and taxes, and the outstanding debt secured by a mortgage bond was amortised by the time of his demise. He later married the applicant and the couple lived in the house until his demise in 2013. Only years later did the respondent claim half of the current value of the immovable property as the still-registered co-owner. In this contribution, attention is devoted to the justifiability of the premise of the court that the claim should succeed notwithstanding the fact that more than nineteen years had lapsed since the applicable joint estate ended with the divorce order and the claimant did not contribute to the current unencumbered value of the property. If the claim to half of the value of the former joint estate is categorised as a personal right of the claimant, it is submitted that the effect of extinctive prescription should have been considered. By default, a debt is extinguished after three years and just the listed categories of debts mentioned in section 11(a) of the Prescription Act, including a judgment debt, will prescribe only after 30 years. It is submitted that the division of the joint estate is a natural consequence of the end of the marriage in community of property, and in KwaZulu-Natal orders for a division of the joint estate of parties married in community of property are consistently refused when divorce orders are granted for the very reason that they are unnecessary. In the absence of an applicable court order, the relevant debt cannot be defined as a “judgment debt” and the default prescription period governed by section 11(d) of Act 68 of 1969 should apply. It is inequitable that a previous spouse may, more than nineteen years after the divorce, benefit from the subsequent enhanced value of an asset that formed part of the erstwhile joint estate at the cost of another, who had contributed to that currently enhanced value of the asset since the joint estate came to an end. It boils down to unjustified enrichment if this is accomplished under the guise of her joint ownership of the immovable property still registered in the names of the former spouses as original co-owners because the real right of ownership is imprescriptible. A personal claim for half of the value of the assets in the estate would, however, have been prescribed after three years since the claim had vested.

An Obligation to Register in the Unmovable Property Registry as a Duty to Reverse Unjust Enrichment: A Study on the Process of How a New Rule Has Been Shaped in the Supreme Court

An Obligation to Register in the Unmovable Property Registry as a Duty to Reverse Unjust Enrichment: A Study on the Process of How a New Rule Has Been Shaped in the Supreme Court

An Overview of the Origin of the Modern Doctrine of Contractual Laws with Particular Reference to Assumpsit

Unjust enrichment, the doctrine of modern contract dates back to the 13th century English Law, known as the “Action of Assumpsit” which developed from “Trespass on the Case.” The courts at that time did not recognize our modern concept of breach of contract. According to Ranulf Glanvill, a famous legal scholar, he wrote just before the year 1200 thus, “It is not the custom of the Lord King to protect the private agreements nor does it concern itself with such contracts as can be considered private agreements.” [1] However, in the early days of English common law, the forms of actions known as Writs provided a proactive approach to the categories of civil liability and according to Maitland’s words “the forms of action we have buried, but they still rule us from their graves.” [2] This article seeks to proffer an overview of the historical development of our modern contractual terms and law.

The Railway’s Unjustified Enrichment as a Result of Abuse of the Right in Obligations To Carry Goods

The paper examines issues related to unscrupulous behavior of the railways, which unthoroughly benefit at the expense of other participants of the obligations for the carriage of goods. The paper considered cases where the railways use legally valid facts (transactions) as imaginary grounds for obtaining property (money) from freight and cargo owners and encourage them to provide the undue. It is proposed to qualify such a conduct of the railways as an abuse of the right committed for the purpose of unjustified enrichment. Based on the analysis of complex contractual relations (contracts on carriage organization, contracts in the form of submission and acceptance of an application for the carriage of goods, contracts of carriage of goods, etc.) arising between the participants of legal relations concerning the carriage of goods (shippers, consignees, owners of infrastructure and carriers), the author has identified conditions that are conducive to receiving unjustified enrichment by the railways, namely: combining different legal statuses by the railways (carrier, owner of infrastructure, agent of a third party, etc.), removal from the railways of the burden of performing obligations and risks of liability for the failure to perform obligations, the position of a weaker party assigned to the railways’ contractual counterparties. According to the author, in order to prevent references to legal facts as grounds for enrichment, the economic purpose of the legal relationship must be recognized as an appropriate ground. It is noted that such an economic goal is one for the goals pursued by the whole system of legal relations for the carriage of goods and that its violation deprives the railways of the right to demand execution under the transaction, since making this claim must be considered as an abuse of the right. It is argued that the contractual counterparty of the railways, aware of the absence of grounds for granting property on its part, does not commit a legal error, as soon is it is a weaker party to the contract.

Da (im)possibilidade de um tratamento principiológico do enriquecimento sem causa no Brasil

O presente artigo objetiva aclarar o tratamento assistemático dado ao enriquecimento em causa na prática forense, que é, por vezes, invocado como princípio capaz de traçar critérios de justiça e equidade. A partir do método dedutivo, para tanto, traçar-se-á a análise a partir da consolidação do enriquecimento sem causa e seus elementos estruturais no Brasil até a sua reconstrução histórica, afastando-se, ao final, a aplicação principiológica do enriquecimento sem causa, pois é um ramo do direito das obrigações alicerçado na abstração de causa.

Unjust Enrichment: What We Owe to Each Other

Abstract In some quarters, the focus of unjust enrichment scholarship has shifted from loss and gain towards the defendant’s ‘involvement in the story’—what she has done to warrant liability. The goal of this shift is to fit unjust enrichment within the ‘doer-sufferer’ template of ‘corrective justice’ theories of private law. I argue that this shift fails to reconcile unjust enrichment with the commitment to equal freedom upon which these theories depend. But we can justify restitution without forsaking the Kantian concern with rational agency. In this article, I endorse a contractualist approach to mistaken payments: a particular use of the state’s coercive power is just if it is one that everyone could rationally choose; everyone could rationally choose a rule placing the burden of risk for mistake with payees, if that rule does not make any such payee worse off than she was prior to the impugned transaction.

Introduction: The Oxford Handbook of the New Private Law

“Private law” embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent more statutory areas such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. “Private law” can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law – including courts, arbitrators, and even custom. The New Private Law is an approach to these subjects that aims to reinvigorate the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law’s various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law – including philosophical, economic, historical, psychological, to name a few – yet it offers a unifying theme of seriousness about the structure and content of private law. This Introduction introduces the New Private Law and briefly summarizes the chapters in the volume.

ANOTHER CIVILIAN VIEW OF UNJUST ENRICHMENT'S STRUCTURAL DEBATE

AbstractThis article seeks to illustrate the kinds of difficulties that may follow from renouncing a unified approach to restitutionary claims for unjust enrichment. To do so, it draws on the experience of the French legal system, where the notion of unjustified enrichment describes a maxim inspiring various doctrines which have evolved in relative isolation from each other. Relying on this experience, the article argues that the objections recently raised by Nils Jansen against the German law of unjustified enrichment should not lead English lawyers to downplay the value of a unified approach to the subject.

A teoria do produto bruto mitigado como alternativa para o ressarcimento de danos ao erário nas fraudes em contratações públicas

Apesar de encontrar amparo expresso na Lei Geral de Licitações (Lei n. 8.666/93), o ressarcimento da íntegra do contrato nos casos de ilícitos e fraudes em contratações públicas ainda é medida excepcional, lastreada na interpretação dos tribunais pátrios de que tal medida acarreta enriquecimento sem causa da Administração Pública. A fim de contornar esse entendimento e, ao mesmo tempo, garantir que as sanções aplicadas tenham força dissuasória de novos ilícitos, as Cortes de Contas desenvolveram a teoria do produto bruto mitigado, que pressupõe a restituição tanto de eventual sobrepreço praticado pelo contratado de má-fé, quanto do lucro sobre a parte que ele efetivamente executou. Embora as decisões judiciais não façam menção nominal à teoria, seus fundamentos têm ganhado cada vez mais espaço na jurisprudência e representa uma alternativa viável e juridicamente robusta à medida mais gravosa representada pela devolução da íntegra do contrato.

The Economic Succession Doctrine in Private Enforcement of EU Competition Law: 'Nothing Extraordinary' After Skanska Industrial?

The article analyses the recent judgment of the Court of Justice of the European Union (CJEU) in Skanska Industrial. In its preliminary ruling, the CJEU recognised for the first time the so-called “economic succession doctrine” in damage claims concerning a breach of EU competition rules. In the judgment, the CJEU relied on its well-established case law. From this point of view, the ruling is “nothing extraordinary”. Nevertheless, the judgment represents an important milestone that contributes to the development of damage claims in Europe. The article first discusses the origins of the economic succession doctrine, which derives from the broad concept of “undertaking” developed by the CJEU case law and the so-called “single economic entity” doctrine. Afterwards, the article discusses the Skanska Industrial case, in particular by comparing the opinion of Advocate General (AG) Wahl with the CJEU ruling in the case. The article concludes by discussing the potential consequences of the CJEU ruling in Skanska Industrial on private enforcement of EU competition law, as well as the questions that remain open after the judgment. After Skanska Industrial, it remains unclear how the disclosure of evidence will take place in practice in the context of a damage claim following a corporate restructuring. Secondly, the limits of the economic succession doctrine remain unclear: it is unclear when a corporate restructuring indeed leads to the establishment of a “new” undertaking, free from the antitrust liability acquired by its predecessor. Finally, it remains unclear whether Skanska Industrial case law could also be extended to other remedies besides damage claims, such as actions requesting a court injunction, compensation for unjust enrichment, or a declaration that a contract is null and void. The article argues that in the coming years the CJEU will probably be called to clarify SkanskaIndustrial case law in order to answer these remaining questions.

Aid, Governance and Public Finance Fraud: Evidence from Angola

This article examines the process of public finance fraud leading to unjust enrichment of ruling elites in Angola, a resource-rich, yet ironically povertytrapped country, owing to decades of rule of José Eduardo dos Santos. It analyses the phenomenon of political corruption in the Angolan context, translating into mismanagement of public revenues coming from natural resources as a means of attaining private economic benefits and consolidating power. Moreover, by examining cross-border inter-company networks aimed at concealing public assets behind front companies, the author attempts to establish a connection between corruption and illicit financial flows. Ultimately, since political corruption is intrinsically linked to governance, the article looks at the impact of the latter on social development as well as on the effectiveness of development aid granted to Angola. It was written based on secondary resources including existing literature and material evidence. Its findings and conclusions correspond with the overall theory postulated by the academic community, maintaining that natural resources and aid have negative impact on governance, institutional accountability, and in consequence on human development, especially in countries characterised by despotic rule.

On copyright trolling in the framework of civil law

The paper analyses copyright trolling in the scope of illegitimate compensation claims for a breach of the author’s economic rights, i.e. where: 1) no infringement of economic rights has occurred, or 2) the action has been brought before the wrong authorities, or 3) the claimant has no title to bring the action before the court. It was noted that the use of copyrighted works requires the consent of the owner of economic rights, or such a use as an exception is possible in the form of permissible use. If a work is used under a contract or the law, no infringement occurs. It outlines cases of a breach of the author’s economic rights in the Polish law and the protection measures available to the entitled party in the event of an infringement. In particular, according to Art. 79 of the Copyright Law, the injured party may generally demand that the person who infringed upon the economic rights (the offender): 1) ceases the infringement; 2) removes the effects of the infringement 3) redresses the damage: under general conditions or by paying double the amount due if the owner had consented to the use; 4) renders the obtained benefits. A copyright troll calls the recipient to redress the damage by paying an appropriate sum, which is the owner’s right in the event of an infringement. Copyright troll falsely relying on the fact of infringement, while acts to obtain undue benefits. Furthermore, it discusses the term of “copyright trolling” and its scope. A significant conclusion is that copyright trolling is an action of exploiting copyright infringement and the related protection measures to obtain material gain (extort money). The paper offers an assessment of the phenomenon in the framework of civil law, focusing primarily on the legal basis for the return of the performance / redressing the damage. The basis for the return is provided by regulations on unjust enrichment. It is observed that the circumstances of copyright trolling allow for claiming infringement upon personal interests, such as privacy, peace, the right not to be disturbed, the inviolability of the home. This work aims to contribute to the growing body of literature on copyright trolling. The author especially hopes to initiate an informed discussion based on research, which could have the additional benefit of educating the public on the subject.

Price Estimation by the Construction Act and Judicial Unjust Enrichment - Based on the calculation of the conversion price of Pricing of Apartment Housing under the Old Rental Housing Act -

Price Estimation by the Construction Act and Judicial Unjust Enrichment - Based on the calculation of the conversion price of Pricing of Apartment Housing under the Old Rental Housing Act -

Counteraction to Corruption Offences in Ukraine and the EU: Comparative Legal Aspect

The article focuses on counteraction to corruption offences in Ukraine and the EU. To this end, the authors conducted a consistent analysis of international legal acts in the field of combating corruption, in particular the United Nations Convention against Corruption of 10/31/2003; Council of Europe Criminal Convention for the Suppression of Corruption (ETS 173) No. ETS173 of 01/27/1999; Resolutions (97)24 of the Committee of Ministers of the Council of Europe on the Twenty Guiding Principles for the Fight against Corruption, etc. The study provides a systemic analysis of individual cases of experience in counteraction to corruption offences in EU countries. Experience of Great Britain, France, Germany, Belgium, Sweden, etc. is explored. The authors proved that all EU countries provide criminal liability for committing corruption offences. In different countries, criminal laws differ in the different levels of detailing of crime, as well as in the different content of the concept of corruption offence. It is proven that corruption must always be considered as criminal offence only. Today, such unambiguity is advisable in the fight against corruption in Ukraine, where the criminalization of a number of blatantly corrupt practices, such as unjust enrichment, lasts for a long period and is ambiguously effective. The article also concludes that the most effective approach of legal support for combating corruption is one that covers criminal prosecution, disclosure of information about public authorities and private entities, their income levels, their wealth, etc., as well as the interaction of law enforcement agencies with the fiscal authorities. On the example of EU countries, we showed that monitoring of financial information of public officials under the private and public laws with the proper level of analytical support for its processing provides the necessary basis for law enforcement agencies to initiate criminal proceedings for such crimes. Special attention is also paid to expanding the scope of administrative services provided by public officials as being covered by the attributes of corruption and lacking legislative support. This will significantly increase the level of transparency of the activity of public authorities, while reducing the level of corruption manifestations. An important conclusion of the article is that the effectiveness of criminal prosecution for committing corruption offences depends on the level of legal culture and the level of legal awareness of both the public and public servants.

DISGORGEMENT and CAUSATION at Unjust enrichment in U.S.A Law

DISGORGEMENT and CAUSATION at Unjust enrichment in U.S.A Law

Unjustified enrichment and statute: Pert v McCaffery

Much interest has been shown in the decision of a bench of five judges in Pert v McCaffery.1 In a leading opinion and a single concurrence,2 the Inner House held that the failure to exercise the right to apply for an order for payment under section 28 of the Family Law (Scotland) Act 20063 on the breakdown of a cohabitation does not bar a claim in unjustified enrichment. This is a small improvement to the operation of a statutory provision for which, save that it provides something of its type for former cohabitants where there was nothing before, there is little to be said.4 It is telling that progress consists in keeping section 28 out of the way. This note examines five points of interest arising from the case.

Liens, necessity and unjust enrichment

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