Unjust Enrichment Research Articles

Conditional Obligations of Spouses: Theoretical Issues and Judicial Practice

Statement of the problem. The questions of realization of civil norms about unjust enrichment in family law are relevant in connection with the strengthening of the economic component in the property relations of spouses. In addition, spousal conditional claims have recently been the subject of an increasing number of proceedings in the courts of general jurisdiction. However, while the civil law aspects of conditional obligations have been extensively and deeply researched in science, the issues of implementation of civil norms on unjust enrichment in family law have been addressed sporadically and so far remain outside the field of scientific research. Purpose and methods of research. The purpose of this article is to identify current problems of application of norms on unjust enrichment to property relations of spouses on the basis of the analysis of legislation, judicial practice and doctrine. The theme was carried out with the use of the following general scientific methods: a dialectical method of knowledge of the legal phenomena, the logical method was used at material presentation, the method of the system analysis has allowed to study interaction of norms of family and civil law, separate elements and signs of institute of unjust enrichment. In addition, special methods were used in the article: formal-legal, the method of generalisation of legal materials and technical-legal analysis. Results. The analytical study of the institute of unjust enrichment allowed the author to identify groups of family relations in respect of the application to them of conditional rules. In order to eliminate uncertainty in the choice of the method of protection of property rights of spouses, the criteria on the basis of which the claim for the return of unjustified enrichment is distinguished from the other property claims of the spouses was proposed.

King v Adam – Clarifying the Law on Unjustified Enrichment, Cohabitation and Prescription

<i>King v Adam – </i>Clarifying the Law on Unjustified Enrichment, Cohabitation and Prescription

상속분가액지급청구의 범위

The legal nature of the claim right for payment of the amount equivalent to portion under Article 1014 of the Civil Act should be considered as a claim right for division of inherited property.&#x0D; However, when determining the scope of the claim, it should be interpreted in a form that conforms to the payment of the amount, and the legal principle of claim for return of unjust enrichment should apply. The specific results of the analysis on the scope are as follows.&#x0D; First, the valuation time of the unjust enrichment subject to be returned should be based on the time of realistic payment of the amount.&#x0D; Second, the fruits arising from the inherited property are also included in the scope of valuation, and therefore, a claim for return of unjust enrichment is possible.&#x0D; Third, from the time at which the affiliation or trial confirmation becomes known to co-inheritors and from the time at which co-inheritors receive a claim for payment of inheritance equivalent to a portion from the affiliated, whichever occurs first, the co-inheritors are considered as a person enriched in bad faith.&#x0D; Therefore, it is necessary to return the amount equivalent to the present value at that time, plus interest from that time until the actual payment date, and if there is any damages, compensation should also be made.&#x0D; Fourth, in the case where the inherited property is disposed of without division or before division, it is reasonable to claim for payment of the amount equivalent to portion as the meaning of the vicarious compensation division only for the disposed property and divide the remaining property based on specific inheritance portions.&#x0D; Fifth, since the inheritance obligation is not the subject of inheritance property division, the scope of claim for payment of the amount equivalent to portion applies only to the positive property.

Foreign Currency Loans and the Foundations of European Contract Law – A Case for Financial and Contractual Crisis?

Abstract Loans with variable interest rates indexed to foreign currencies carry a double risk for borrowers: a rise of interest rates and an adverse development in the exchange rate. While they therefore could have been forbidden for consumer credit, they are allowed both at EU and (most) national levels. Consumer credit arrangements indexed to foreign currencies that were legal in principle have raised enormous problems when they occurred in large numbers in Eastern and Central European countries and reference was not directly written into the terms (like in Romania), but could change with additional discretionary decisions (such as in Poland and Croatia). While Croatia has introduced special legislation to cure the overall problem, Polish cases are potentially not only causing a systemic risk for the2 whole banking system, but abundantly are the subject of CJEU case law. This triggers the core interest in contract law, namely an unheard-of relevance in EU law of general and more specific questions of the law of restitution – on the basis of unjust enrichment and/or of damages. This article presents the following five main theses. Firstly, while the Unfair Contract Terms Directive (UCTD) contains too vague a scheme of remedies/sanctions for detailed answers, the overarching benchmark is clear, namely a fair balance of interests and the meeting of justified expectations, which the parties, especially on the consumer side, could have had at the moment when the loan was issued. Secondly, general (EU) principles of unjust enrichment, as well as of damages, are recognised by the CJEU in EU law. They order the restitution of what was gained above the status quo ante, but could not have been acquired on markets even by informed and proper contracting at that time and/or the restitution of losses incurred as compared to the status quo ante. Thirdly, Articles 23 and 24 of the Mortgage Credit Directive (MCD) constitute a suitable model around which a set of claims in unjust enrichment can be shaped and can be applied also to old cases. Fourthly, any windfall profit of borrowers (gain beyond what could have been achieved at the moment of formation of the contract) has to be avoided in the name of fairness and justified expectations – which are recognised in CJEU case law as the two main benchmarks of the regime of sanctions of the UCTD. Finally, a fair restitution regime is reached if the borrower, who had not been properly informed (with the nullified clause), can now make an informed choice between the different offers that were offered on markets when the loan was issued. Thus, he/she could now opt for a loan in either the national currency plus applicable interbank interest rate (in the Polish case Zloty tied to WIBOR) or their foreign currency counterparts (i.e. a loan in CHF tied to LIBOR). Expropriation (of banks) of the loan capital, as well as the possibility to use that capital to generate interest have to be avoided, for penalisation is neither an aim of European contract law nor of the UCTD.

Поворот исполнения решения суда, когда в ходе исполнения решения о взыскании денежных средств ответчик был лишен владения индивидуально-определенным имуществом

The article justifies the position that if, as a result of the execution of the court decision on the recovery of funds, the defendant was deprived of his property, and in the future this decision was canceled and the claim was refused, then the defendant can protect the violated right by filing a replevin claim against the illegal possessor. If this claim is satisfied, the former illegal possessor has the right to apply for damages to the plaintiff (eviction). The overturning the execution of judgment in this situation does not apply. The author believes that the institution of the overturning the execution of judgment in the form of compensation for the actual value of the individually defined property collected is possible only if this thing cannot be vindicated from the illegal owner. In this case, the defendant has a requirement to recover unjust enrichment against the plaintiff. If there are causes for presenting a vindication claim, the defendant shall not be entitled to declare other methods and means of protecting the violated right except for the vindication claim. The overturning the execution of judgment in the form of a recovery of an individually defined property from the plaintiff is impossible in any case — the plaintiff is not its owner, therefore the court's decision of overturning the execution of judgment will be unenforceable.

The Dance of the Deal Exploring Culpa in Contrahendo and ECJ Jurisprudence

Culpa in contrahendo, also known as pre-contractual liability, is an essential legal doctrine that regulates the behavior of parties during contract formation and negotiation. In the European Union, culpa in contrahendo has been the subject of extensive jurisprudence by the European Court of Justice (ECJ), which has played a significant role in influencing its development and application in EU contract law. This paper provides an overview of culpa in contrahendo and its development, as well as an analysis of the ECJ's case law on the doctrine. Subsequently this paper examines important ECJ decisions and evaluates the efficacy of culpa in contrahendo in EU contract law. In addition, the paper examines the practical application of culpa in contrahendo and compares it to other legal doctrines including estoppel, unjust enrichment, and good faith. In comparison to these other doctrines, the advantages and disadvantages of culpa in contrahendo are highlighted. Ultimately, the paper asserts that culpa in contrahendo is a useful legal concept for regulating pre-contractual behavior, despite its restricted applicability and dependence on a fault-based approach, which hinders its efficacy.

Equitable Crime and Constructive Punishment: Deemed and Actual Agency Gains in Canadian Law

This article deals with the test for whether proprietary relief is warranted by way of constructive trust, as set out in Roy Goode’s essay “Property and Unjust Enrichment” and later adopted by the Supreme Court of Canada in Soulos v. Korkontzilas. The article hones in on the second element of the Soulos test — the deemed agency gain — proposing that there cannot be a deemed agency gain where the wrong committed was not connected to an action authorized by the plaintiff. Therefore, the article proposes that deemed agency gains cannot exist in cases involving bribery or other corruption, and as such cannot be used to obtain a constructive trust in these cases, unless the specific act of corruption was in fact authorized by the plaintiff.

해제로 인한 원상회복에서의 원물반환 불능의 효과

In social life, it is not uncommon for contracts of sale to be canceled. This includes contract cancellation, such as contract cancellation or cancellation pursuant to Article 565, or statutory cancellation due to delay in performance or inability to perform. At this time, the prevailing view and the Supreme Court regard the relationship of restoration to original state due to cancellation as the relationship of return of unjust enrichment, which is related to legal claims, and apply the provisions on the return of unjust enrichment unless there are special provisions such as Article 548 regarding restoration to original state. However, there are still many issues that remain unresolved here. One of such issues is the issue of liability for damages and risk bearing due to the impossibility of returning the original goods in the restoration of the original state due to cancellation, and the rightt of vicarious compensation Through this article, we will discuss the subject and scope of the obligation to return the original property and value in restoration of the original condition due to the cancellation of the sales contract, the right to make a claim for damages and the right to claim compensation for damages (Article 390) due to the impossibility of returning the original property, and the risk bearing problem. I looked. In particular, although there is no express provision in the Civil Act, the dominant view and the right to claim the subject recognized by the Supreme Court are not only recognized in the case of inability to pay (impossibility to perform), etc. I knew that it could be accepted in any case. And apart from the liability for damages caused by default on the basis of the default that caused the statutory release, if the recipient's intention or negligence is recognized for the impossibility of returning the original state due to the release, the recipient also claims to the beneficiary at this time. It was also confirmed that it could bear the liability for damages under Article 390. For example, if the buyer, who is the recipient who is to deliver (return) the object to its original condition after the contract is canceled due to the buyer's delay in paying the price, loses the object by negligence, Since the recipient, obligated to return the object, violated the duty of care of a good manager in keeping the object and destroyed the object, he is liable for damages caused by the non-fulfillment of obligations. Compensation is caused by non-fulfillment of contractual obligations, and compensation for damages due to inability to return original goods in restoration to original state due to cancellation is caused by non-fulfillment of statutory obligations, which is the obligation to restore the original state. In addition, regarding Article 553, which stipulates the special cause of extinction of the right of rescission, the prevailing opinion affirms the application of Article 553 even before the right of rescission occurs, but it is difficult to agree with the above view because the extinguishment can only be discussed after the right of rescission has occurred. It is hoped that this article will be of some help in understanding the nature and effect of the obligation to restore the original state due to cancellation.

The correlation between vindication, restitution, and condiction as civil law methods of property rights protection: some aspects.

The article has been devoted to the study of the problem of distinguishing between vindication, restitution and condiction as civil law methods of property rights protection. It has been found that vindication as a material legal method of protecting property rights is characterized by a number of features that simultaneously act as conditions for its application, and the absence of at least one of them excludes the possibility of qualifying the corresponding material legal requirement as a proper method of protection.It is well-founded that the action to declare the deed invalid with the corresponding application of restitutionary consequences is, unlike the vindication action, an obligatory legal means of protecting the right of ownership, therefore it should be applied only in the case when the parties are in a contractual legal relationship. In view of this, restitution has been characterized by certain features that are manifested in the peculiarities of the subject composition of legal relations.It has been established that the content of the construction of the obligation of unjust enrichment due to the direct instructions of the law partially overlaps with restitution and vindication, which according to their legal construction have similar mechanisms of application. A systematic analysis of domestic legal norms has showed that the condiction as a non-contractual binding way of protecting property rights is a kind of generalized construction that can be applied both independently and subsidiarily to all cases when one person acquires or retains the right to property or actual possession by him at the expense of another person without a proper legal basis. Therefore, the condiction is applicable as a subsidiary (additional) method of protection only in the event that the corresponding claim of the owner or title holder of the property has not been covered by the regulatory regulation of the main method of protection of the right, but has been covered by the definition of the obligation due to its characteristic features, conditions and subject composition from the acquisition or preservation of property without a sufficient legal basis.

Comparative analyses of unjust enrichment law in the foreign legislation systems

Development of integration processes in the conditions of international globalization, and wide-spread usage of various international electronic payments systems lead to a situation when facts of unjust enrichment can cross borders and become a wide-spread international phenomenon.&#x0D; Purpose of this article is to analyze approaches to what is qualified as «unjust enrichment» in the area of law and jurisdiction in the forerign countries and discussing main issues raising when defining the term.&#x0D; In the article the emphasis underscores the fact that in the contemporary law-based systems the possibility of breaking a balance of interests of the participants as a result of unjust move of assets, is directly addressed by existing laws or is considered by court on the ground of unfair gain. The main rule that regulates such law collisions in situations that define governing principles in case of unjust enrichment, is the legislation system of the country where such collision takes place.&#x0D; It is also stated that these days obligations arising from becoming an unintentional party gained from the unjust enrichment are defined separately from commercial or civil law. It is also emphasized that establishing such a regulatory mechanism has been based on a long period of evolution in understanding the essence of what should be considered an unjust enrichment.

In the Event of Void of Contract: Application of the Restitution Rules in the Chinese Civil Code

If a contract that includes a payment is void, the rule of Article 157 of the Civil Code of PRC “return of the property” can be the relief of real right or the relief of obligation. In particular, when the contract is aimed at the transfer of ownership, and its public notice is not completed, the claim for recovery shall be established; on the contrary, the claim for unjust enrichment shall be established. The difference in contract type is decisive in determining the claim of restitution. In the event of the contract void, the right of claims derives from property law, unjust enrichment law， or contract law. Therefore, Article 157 cannot be used as the basis of the independent claim. Regarding forms of restitution, restitution in kind is the principle, and restitution in value is the supplement, but the parties may make a special agreement on the form. The scope of restitution for the recipient includes the extant enrichments and the fruits; meanwhile, its subjective state should be considered. If malicious, he should return the fruits that should have been collected but not collected. Overall, the Contract Part of the Civil Code realizes the renewal and expansion of unjust enrichment law.

Data Misappropriation

Data scraping (also called web scraping, screen scraping, or web crawling) is a technique that uses “bots” to automate the collection of information from publicly available websites. Fundamentally, data scraping is data copying. Intellectual property (“IP”) law—namely, copyright—typically handles disputes involving copying. However, copyright law largely fails to protect data and databases (i.e., compilations of data). Instead, plaintiff websites assert contract law, Computer Fraud and Abuse Act (“CFAA”), and state unfair competition law (common law misappropriation, unjust enrichment, conversion, and trespass to chattel) claims against data scrapers. This Note proceeds as follows. First, this Note examines how scrapers can be liable under trade secret law for scraping data from publicly accessible websites. Initially, trade secret law seems incongruous with data scraping because the core concept of trade secret law—secrecy—is seemingly at odds with public accessibility. If a website is publicly available, how can a scraper be liable for trade secret misappropriation of the website’s data? This Note explains how a recent Eleventh Circuit case, Compulife Software Inc. v. Newman, laid the groundwork for a trade secret cause of action. This Note reconciles Compulife with existing trade secret jurisprudence, argues that Compulife was rightly decided as a matter of both law and policy, and provides a roadmap for courts to apply trade secret law to data scraping cases. Second, this Note explains why courts and litigators should use trade secret law to adjudicate data scraping disputes. Specifically, this Note argues that, compared to the existing alternatives, trade secret law is best suited to handle the various policy issues surrounding data scraping. This Note explains how contract law and the CFAA have filled the database void left by copyright law: contract law and the CFAA have become “quasi-IP” regimes, granting websites property rights in databases otherwise unprotected by copyright law. In response to the emergence of quasi-IP, this Note argues for reconceptualizing the data scraping problem by reframing data scraping as data copying—reframing data scraping with an intellectual property lens. Trade secret law offers a framework for that reconceptualization. In contrast to contract law and the CFAA (an anti-hacking law premised on criminal trespass principles), trade secret law provides courts and litigators with the appropriate IP-based doctrinal levers to analyze data scraping cases. Finally, this Note analyzes how EU law filled the database gap by creating an IP right, the sui generis database right. This Note argues that Compulife’s trade secret theory emulates many aspects of the EU sui generis database right. In this sense, Compulife’s trade secret theory can be seen as the United States’ attempt to fashion its own sui generis database right to fill the database gap left by copyright.

Regspraak: Rei vindicatio teenoor terughoudingsbevoegdhede – ’n allegaartjie van verwarring

Regspraak: Rei vindicatio teenoor terughoudingsbevoegdhede – ’n allegaartjie van verwarring

Sticanje bez osnova - uporednopravni pregled

Unjust enrichment is very highly positio ned as one of the sources of obligations in the Law on Obligations. Research of comparative legal literature (both doctrinal type and judgments of national courts) indicated significant differences in the attitude towards this institute both bet ween the legal systems of continental law and within the corpus of countries in which the so-called common law system is dominant. In the paper, a detailed analysis of both domestic and COM parative legal literature and court practice was carried out. During the research, special emphasis was placed on the legal solutions in force in other, primarily European legal systems. The analysis included both those legal systems (French, German) that have a decisive influence on the civil law codes of other continental law countries, as well as those that are of decisive importance in coun tries characterized by precedential law (Great Britain, United States of America). A re view was al so made of solutions from the Hungarian legal system, whose impact on our law is not ne arly as far-reaching as the aforementioned legal orders, but due to the similarity of the genesis of civil law in our two countries in the last hundred years, they arouse interest. One of the basic differences bet ween continental and commonlaw is reflected in the fact that in the former the central question is whether there was a legal basis for the defendant to gain some benefit, while the latter the focus is on the question of whether the plaintiff has a basis to claim restitution. Consequently, in continental law systems, the court will, first of all, order the restitution of what the defendant unjustly acquired, while in "common law" systems the plaintiff has the obligation to first prove that he has a reliable basis for restitution. In addition to recognizing the differences between the two groups of systems, through analysis we also come to distinctions within the groups themselves. For example, unlike French law, German law, albeit with certain difficulties, resolves the problem of unjust enrichment due to the actions of a third party. According to our ZOO, when a part of one person's property has been transferred in any way to the property of another person, and that transfer has no basis in a legal transaction or in the law, the acquirer is obliged to return it, and when this is not possible - to compensate the value of the benefits achieved. Obligation to return, i.e. compensation of value also occurs when something is received with regard to a basis that was not realized or that later fell away. The obligation to return is not subject to those goods that were given in the name of fulfilling some natural obligation or some moral or social duty, amounts that were paid even though the payer knew that he was not obliged to make the payment, as well as funds that, without a legal basis, were paid in the name of compensation for damages due to bodily injury, health impairment or death, if the payment was made to a bona fide recipient. The review of domestic judicial practice shed light on a wide range of situations in which legally unjustified enrichment can occur, i.e. acquisition without grounds. Although we are talking about an institution that has long been present as a source of obligations in the Law on Obligations, certain judgments, which are contra legem, show that in connection with this institution there are, still, numerous doubts.

Settlement Of Biopiracy Disputes: Is The WTO An Eligible Forum

In 2001, the World Intellectual Property Organization Intergovernmental Committee (WIPO IGC) set out to create an international legislature for the regulation of traditional knowledge and genetic resources (TKaGR). More than two decades later, the legislative process is still inconclusive. One of the most significant indigenous problem this law would have addressed, is the scourge of biopiracy. Biopiracy encompasses a wide range of practices including unauthorized access, uncompensated use and unjust enrichment from TKaGR. Currently, TKaGR custodians have the option of seeking redress at national courts under diverse IP headings and unfair competition as the facts of each biopiracy case dictates. This article will examine the basis for initiating a settlement at the World Trade Organization Dispute Settlement Body (WTO DSB), appropriate case categorization, possible remedies and likelihood of success.

The Pandemic Special with a Side of Shut-Downs: A Note on NYC's Restaurants in the Age of COVID-19

SARS-CoV-2 is the virus causing the coronavirus disease (COVID-19). The World Health Organization (WHO) stated the virus originated in Wuhan, China. On March 11, 2020, the WHO declared COVID-19 a global pandemic. On the day of this declaration, New York City reported its first COVID-19 associated death. Three weeks after the discovery of the coronavirus, NYC accounted for 5% of the world’s confirmed cases, rendering the region a global epicenter. By May 2, 2020, New York City recorded 13,831 COVID-19 deaths, and estimated an additional 5,048 probable deaths. COVID-19 is infamous for its lethal effects: the Center for Disease Control listed COVID-19 symptoms that include “fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches . . . . ” For individuals who are at higher risk of severe illness (young children, the elderly, and those with compromised immune systems), COVID-19 is deadly. Globally, and as current as January, 2021, the WHO reported 93,611,355 confirmed cases, and over two million deaths. When the pandemic struck the State of New York in March 2020, Governor Cuomo signed Executive Order No. 202, declaring a state of emergency. Shortly after this declaration, the Governor signed the “New York on PAUSE” Executive Order which required all nonessential businesses to shut down. Subsequent guidance clarified the meaning of “essential businesses,” which did not include restaurants. The COVID-19 crisis in New York City eviscerated most restaurants’ capacities to conduct their ordinary business activities. Even when New York City began entering its reopening phases, the economic ramifications of COVID-19 and the Executive Orders continued to pose unprecedented hardships for restaurants. Despite the substantial health risks of resuming restaurant work amidst a global pandemic, many restaurant owners concluded that reopening their businesses would be an unprofitable and dangerous affair. Accordingly, many restaurant owners diligently, although with great sadness, elected to close shop permanently. Commercial rent in Midtown Manhattan and throughout New York City is expensive. Rent may be as high as thousands of dollars per square foot. As such, the pandemic understandably caused landlords anxiety about lost income. Yet some landlords began pestering small business owners for rent. Beyond mere pestering, such landlords have threatened to sue for damages to recover the rent owed. This crisis ended lengthy, harmonious, and profitable businesses ventures. Amongst the myraid, unfortunate results of this pandemic, a new looming threat of unjust enrichment emerges. If landlords threatening to sue small restaurant owners for rent owed succeed, such owners would suffer a burdensome economic harm, in addition to losing their businesses. This crisis raises complicated questions of contract and property law regarding commercial leases in the event of unforeseeable emergencies: should defendants in breach of contract lawsuits be required to pay rent when performance of the paramount contractual terms, i.e., operating the business safely, become no longer possible? Does a global pandemic constitute an “act of God” which triggers force majeure clauses? And in the absence of such clauses, can the common law doctrines of impossibility of performance or frustration of purpose rise up to the defense of the small business owner? Can the State and City of New York solve this matter through legislation and ordinances? This Note explores these questions, while prescribing the need for force majeure clauses that clearly define pandemics and other imminent natural disasters as triggering events as the most powerful prospective solution. This Note will first discuss COVID-19’s impact on New York City from public health, economic, and administrative perspectives. The next part will delve into relevant pending legislation and enacted NYC ordinances that respond directly to the issue of commercial rent in this crisis. Part III discusses the state of the common law of contracts with respect to force majeure and impossibility of performance doctrine. Part IV includes legal analysis of four major areas of contract law in New York: impossibility of performance doctrine, force majeure, landlord-tenant obligations, and remedies. Fifth, the note will propose solutions to this crisis. Retrospectively, considering that many contracts do not presently include “pandemics” in their clauses, the impossibility of performance doctrine in the absence of force majeure can serve to protect small business owners. Prospectively, force majeure and material adverse effect clauses should specify “pandemics,” by constituting the strongest form of protection for any party adversely affected by unforeseeable, catastrophic events. Finally, the Note will conclude by summarizing the major arguments and themes, and will reemphasize the policy considerations of protecting small restaurant owners from unjust enrichments in the COVID-19 context.

Unjust Enrichment in Australia 2021-2022

Unjust Enrichment in Australia 2021-2022

Debunking the Want of Authority Myth – Agency Cases in Unjust Enrichment

Debunking the Want of Authority Myth – Agency Cases in Unjust Enrichment

Unjust enrichment: the platypus of private law

Unjust enrichment: the platypus of private law

A Short History of the Restatement of Restitution and Unjust Enrichment

A Short History of the Restatement of Restitution and Unjust Enrichment