Unjust Enrichment Research Articles

“Unjust Enrichment” as a Basis for Compensation for Expropriation under International Law

“Unjust Enrichment” as a Basis for Compensation for Expropriation under International Law

Restitution, Unjust Enrichment and Domestic Caregiving

Restitution, Unjust Enrichment and Domestic Caregiving

Name of the individual as the subject of the transaction: from criticism to recognition in civil law

The article considers the problem of transactions with man’s name in the context of the global process of commodification, or commercialization of elements of man’s identity, on the one hand, and the traditional view on the inalienable nature of immaterial goods, on the other. The study of the functions of a man’s name in civil turnover allows us to take a broader look at the subject of a transaction with the name and indicates the need to create a system of special measures for the protection of intangible goods involved in turnover by clarifying the limits, forms and conditions of their use. In the absence of a mechanism for protecting property interests arising from the use of a man’s name without his consent by other persons, the article proposes to apply the rules on unjustified enrichment.

Reduction of damage suffered as a condition specification requirement

This paper discusses the main approaches to the problem of unjust enrichment claimant impoverishment as a condition for the emergence of the unjust enrichment claim, as well as the advantages and disadvantages of each of these approaches. After that, based on the analysis of the doctrine, the current state of the Russian law of unjust enrichment is considered and a conclusion is made about the relation of Russian law to the fact of unjust enrichment claimant impoverishment.

Current Issues in Unjust Enrichment 2022: Failure of Basis, Contractual Rights to Enrichment, Mistake of Law and Limitation Periods

Current Issues in Unjust Enrichment 2022: Failure of Basis, Contractual Rights to Enrichment, Mistake of Law and Limitation Periods

From the doctrine of restitution of the Spanish late scholastics to the European law of non-contractual obligations?

The article traces the influence on modern law of the late scholastic theory of restitution (restitutio), which integrated the laws of unjust enrichment, delict, and damages into one, single overarching theory. Although late scholastic authors were widely read and frequently cited during the 17th and 18th centuries, the impact of their theory of restitution was rather slight. In secular natural law discussions and in the learned ius commune, this theory could not become an attractive model of non-contractual obligations because it was perceived as a symbol of an old-fashioned Thomism and of Catholic, rather than Christian, faith. It is shown that apparent parallels between the theory of restitution and modern private law institutions, particularly in the law of damages, are mostly due to developments that were independent of late scholastic arguments. Nevertheless, the theory may appear intellectually attractive, even from a modern perspective, as it offers a legally innovative rights-based reconstruction of the law of non-contractual obligations.

The principle of autonomy of will as a way to level out the problem of competition non-contractual claims in private international law

The article contains an analysis of the prospects for concluding an agreement on the choice of applicable law in non-contractual obligations in order to reduce legal risks caused by the concurrence of tort and unjust enrichment claims. Within the framework of the study, much attention is paid to the statement and revealing of the problem of the legal qualification of the non-contractual relationship that has arisen in a number of coterminous cases, as well as the problem of the admissibility of providing the plaintiff with an alternative choice of the remedy. This problem has been analyzed both in substantive and conflict of laws terms. From the point of practical expediency, the author considered the ways of leveling of the negative factors arising in connection with the concurrence of claims by referring to the principle of party autonomy, as well as the additional advantages of concluding an agreement on the choice of applicable law in non-contractual obligations. The article contains an analysis of the prospects for improving Russian legislation from the standpoint of the admissibility of ex ante choice of law in order to expand the leveling of emerging risks.

THE ANTINOMIES OF THE IDEA OF LAW IN THE INSTITUTION OF THE VERSION SUIT

Abstract: the article deals with the formal, legal and substantive aspects of the concept of unjust enrichment, taking into account the formation of this institution in the domestic legal order, up to its current state, characterized by a gap in terms of version claims. There is a connection between the problem and the growing tendency in recent years to overcome the formal approach in judicial practice. It is shown that ethical elements prevail in the ideological content of the institution of the versions claim, which is currently not formally fixed, but is derived through a systematic and teleological judicial interpretation of the law. The possibility of using antinomies of the idea of law as a methodological tool for overcoming the gap in the regulation of situations corresponding to the classical model of actio de in rem verso is substantiated.

A Pyrrhic Victory for Unjust Enrichment in Singapore?

A Pyrrhic Victory for Unjust Enrichment in Singapore?

Netting Off Gains and Losses in the Law of Unjust Enrichment

Netting Off Gains and Losses in the Law of Unjust Enrichment

Application of the Law of Unjust Enrichment in the Unwinding of Contracts

Application of the Law of Unjust Enrichment in the Unwinding of Contracts

Roszczenie współwłaściciela o zwrot wydatków poniesionych w związku z rzeczą wspólną

This study is devoted to the analysis of the legal basis, the premises and the content of mutual claims of co-owners for reimbursement of expenses associated with common property, as it is regulated in Polish law. The author expresses the view according to which in Polish law the above mentioned obligation of co-owner is a special case of the general duty to reverse unjust enrichment, based on Article 405 of the Polish Civil Code. This opinion is opposed to the standard view according to which the obligation to pay compensation for expenses associated with common property is based only on Article 207 of the Civil Code. The view according to which the obligation to pay compensation for expenses associated with common property is a special case of the general duty to reverse unjust enrichment makes it possible to justify widely shared assumption that only expenses beneficial to all co-owners should be compensated for. Such expenses include costs incurred in order to improve the common property as well as costs incurred in order to avoid deterioration or loss of the common property. On the other hand, co-owners are not obliged to reimburse for expenses made only in order to satisfy subjective preferences of one of them. The author also argues that on the basis of the statutory regulations concerning unjust enrichment it is reasonable to differentiate between the content of claim for reimbursement of necessary expenses associated with the common property and the content of claim for compensation of improvements made by co-owner. As far as necessary expenses incurred by one of the co-owners are concerned, the obligation of the rest of the coowners is only monetary. On the other hand, if one of the co-owners incurred costs in order to improve the common property and these improvements are significant the co-owner may claim such improvements “in nature”, which means that the co-ownership is dissolved and the object of the common property is granted to the co-owner who made these improvements. In such a case other co-owners obtain amount of money which equals the value of their shares in the common property estimated without taking into account the value of improvements. However, the author also discusses the special cases when the improvements of the common property cannot be compensated “in nature”. In the final part of the study it is argued that the right to reimbursement for expenses incurred by the co-owner is transferred to a person who acquires share of this co-owner in the common property through contract only when there is explicit agreement to that effect or when the contractual transfer of the share is gratuitous.

The Actual Benefit Gaining and Presumptive Impoverishment of the Impoverished Person in the Hypothesis of Usage of Another’s Property in the Meaning of Article 59 of the Obligations and Contracts Act

The present article examines the problems arising in one of the specific hypotheses of the general claim for unjust enrichment within the meaning of Art. 59 of the Obligations and Contracts Act. In the predominant part of the practice, the courts do not examine in detail the question of whether the impoverished plaintiffs had the intention at all and whether they would objectively receive the property benefits appropriated by the unauthorized person using the foreign item. In this way the practice literally creates an “objective” unjustified enrichment in the presence of usage of someone else‘s property without legal grounds and an established right of ownership of the plaintiff. Further developing this scenario leads to a situation in which the court does not examine whether the plaintiff actually suffered impoverishment, despite the explicit requirement of the norm of Art. 59, para. 1 of the Obligations and Contracts Act for the presence of such as part of the elements of the factual composition of the norm. The indicated tendency of the judicial practice will be the examined subject of analysis in the following article.

Regarding the ‘Date of Loss of Ownership’ in the Judgment of the Future Action of Unjust Enrichment Claim - Supreme Court Decision 2015Da244432 Decided Febuery 14, 2019 -

토지 소유자가 저수지의 부지(이하 ‘토지’라 한다)의 무단 점유자에 대하여 토지의 인도를 구하지 않고 장래의 부당이득을 청구한 사안에서 제1심 판결과 원심 판결은 그 종기를 무단 점유자인 피고의 점유 종료일 내지 소유자인 원고의 토지 소유권 상실일 중 먼저 도래하는 날로 정하였다. 이에 대하여 대상판결은 ‘원고의 토지 소유권 상실일’기재는 부적절하다고 판시하였다. 그 이유의 요지는 ‘원고의 토지 소유권 상실일’은 수소법원이 판단할 사항이지, 집행기관이 판단하기에 부적절하고, 위 상실일은 확정 이행판결의 집행력에 영향을 미칠 수 없는 무의미한 기재이며, 위 상실일은 피고의 임의 이행 여부와 직접적인 관련이 없다는 것이다. 그러나 이 사건과 같이 원고가 토지 인도 청구를 하지 않고 부당이득만을 청구하는 경우에 판결 주문에서‘원고의 토지 소유권 상실일’은 반드시 기재할 사항은 아니나 피고의 점유 종료일 이전에 부당이득반환 청구권이 소멸하는 경우를 대비하여 기재할 필요가 있다. 특히 저수지는 농어촌정비법에 의하여 일정한 사유가 있어야 폐지되므로 공물로서 그 공공성에 비추어 점유 종료를 쉽게 예상할 수 없다. 오히려 소유자가 매매 등으로 토지의 소유권을 상실하여 부당이득반환 청구권이 소멸하는 경우가 더 자주 발생할 것으로 예상할 수 있다. 그러므로 ‘원고의 토지 소유권 상실일’기재는 매우 유용하다. 또한 집행기관은 등기의 추정력으로 토지의 소유권 상실 여부나 시기를 일응 판단할 수 있고 이에 대한 불복이 있으면 청구이의의 소 등으로 해결할 수 있다. 그리고 위 상실일 기재는 피고의 임의 이행 여부와 직접적인 관련은 없으나 피고가 집행력을 완전히 배제하는 청구이의의 소를 제기하지 않은 상태에서 원고가 피고로부터 부당이득을 지급받거나 강제집행을 통하여 배당받을 때 부당이득 반환의무의 종기로서 유용하게 활용할 수 있다. 결론적으로 대상판결이 한 직권 판단의 결론과 논거에 반대한다.

Mistaken Payments, Quasi-contracts, and the ‘Justice’ of Unjust Enrichment

Abstract The law of unjust enrichment has often been described as the law of events materially identical to a mistaken payment. By this, lawyers often mean that the cause of action in unjust enrichment is somehow shaped and grounded by the reason why the recipient of (some) mistaken payments morally ought to refund the payor. The difficulty, however, is that the normativity of mistaken payments remains a challenge to explain. This article aims to reinvigorate the view that the moral duty to return mistaken payments is grounded by a tacit agreement between the payor and payee that the payment was conditional (coupled with the failure of that condition). To do so, it critically examines the ways in which our intentions can be conditioned, and how those conditions are communicated in our agreements. The article concludes by examining what implications a conditions-based understanding might have for the law of unjust enrichment.

Datio ob rem and datio ob causam – the purpose of performance in Roman law

Summary This paper deals with one of the most important unjustified enrichment claims in Roman law, the condictio causa data causa non secuta concentrating on the crucial issue of the purpose of performance. In Roman law the purpose of performance was denoted by the term res as a part of datio ob rem (giving for a purpose) or causa as a part of datio ob causam (giving on a basis); however, in the secondary literature there is a dispute over the exact meaning of those terms and their mutual relationship. Some scholars identify res with the counter-performance which was expected from the recipient. Others consider this interpretation of res as too narrow, because datio ob rem was applied not only where the giver expected counter-performance but also when he tried to achieve other goals, including that not associated with the recipient’s behaviour at all. In order to find a solution to that long-lasting dispute the article analyses typical examples of cases described in the sources as datio ob rem or datio ob causam.

Compensation for lands compulsorily acquired by the state: Issues of non-completion of acquisition, non-payment of compensation and potential unjust enrichment

The exercise of eminent domain by the State to undertake compulsory acquisition of property for public benefit was used by the British colonial administration to secure lands for public infrastructure such as roads, streets, public service institutions and others. The post-independent governments assumed this power and applied it to acquire lands and properties for public purpose or benefit from the 1960s to date. However, compulsory acquisitions have been fraught with problems such as non-completion of laid-down acquisition processes and non-payment of compensation to owners of property immediately before the acquisitions were made, even though the public institutions on whose behalf executive instruments were issued to initiate the acquisitions have occupied the lands or properties. This study focused on why this situation occurs, and whether or not it is just. Analytical legal research methods were used to investigate the issues of the study through critical review of constitutional provisions, enactments, regulations, case law, and legal texts. The findings show that the acquisition processes tend to exclude the owners immediately before the acquisition, and the acquisitions by the State remain valid since they were based on appropriate legislation. However, the rightful owners tend to lose their property by operation of law or due to barriers imposed by limitation statutes. The article concludes that this situation borders on potential unjust enrichment to the State which gains property without payment by operation of the rules created for compulsory acquisition.< p>

MAKING SENSE OF MESNE PROFITS: REMEDIES

AbstractThis is the second of two articles about cases in which awards of “mesne profits” have been made against defendants who have occupied claimants’ land. The first article argues that the facts of cases where such awards have been made variously support claims in tort, contract or unjust enrichment and that practical consequences can flow from categorising the cases in one way or another. One is that different rules affect the assessment of remedies awarded to claimants depending on the claim that was made and the remedy that was awarded. The present article develops this point by examining the assessment principles governing “mesne profits” awards, according to whether these are classified as compensatory damages in tort, restitutionary damages in tort, orders that a defendant perform a contractual duty to pay a debt, compensatory damages for breach of contract, or orders that a defendant make restitution of an unjust enrichment.

Remedial consistency in private law

This article is concerned with the concept of ‘remedial consistency,’ the consistency of remedial rights with primary rights in the sense I explain. I argue that the requirement of remedial consistency has important implications across private law. It suggests that the ‘continuity thesis’ does not provide a justification for the right to compensation for a wrong, and I argue that rights to compensation are not generally based on wrongdoing. I also consider whether the absence of a right to specific performance is consistent with the existence of a duty of performance, and I discuss the need for alternative remedies to be mutually consistent. I also discuss the implications of remedial consistency for the concept of unjust enrichment, and I argue on the basis of remedial consistency for the general availability of proprietary claims for invalid transfers.

The Defence of Illegality in Private Law

The defence of illegality is invoked across private law, but has a reputation for being confused. This article argues that the defence can be rendered intelligible and sharply focused by understanding its underlying rationale, and applying that discretely and to different effect in each of tort, contract, unjust enrichment, and trusts.