Journal articles: 'Unjustified enrichment'

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Hee-Ho Pak. "Unjustified Enrichment in DCFR." HUFS Law Review 33, no. 2 (May 2009): 89–128. http://dx.doi.org/10.17257/hufslr.2009.33.2.89.

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Jansen, Nils. "Farewell to Unjustified Enrichment?" Edinburgh Law Review 20, no. 2 (May 2016): 123–48. http://dx.doi.org/10.3366/elr.2016.0339.

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In this article, Professor Jansen sets out the historical background and present state of unjustified enrichment theory in the German-speaking civilian legal systems, Austria, Germany, and Switzerland. The German law of unjustified enrichment has grown from two intellectually separate roots. These different legal ideas were interwoven during the 19th century by the German Pandectists. During the 20th century, it began to appear to many that these ideas did not fit well with one another. Professor Jansen thus argues that the modern civilian law of unjustified enrichment is increasingly characterised by a division into independent and distinct parts. In particular, the rules on the unwinding of contracts and on payments made in contemplation of future contracts no longer have much in common with claims based on an infringement of another person's property right. The conclusion drawn is that the Germanic systems should take their leave of the unifying idea of unjustified enrichment.

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Macgregor, Laura J. "Illegal Contracts and Unjustified Enrichment." Edinburgh Law Review 4, no. 1 (January 2000): 19–45. http://dx.doi.org/10.3366/elr.2000.4.1.19.

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If a contract is treated as an illegal contract, the contracting parties are denied the contractual remedies which would normally be available to them on breach of contract. The contract may, however, have been partially performed. For example, one contracting party may have delivered goods and received no payment from the other contracting party. The availability of unjustified enrichment remedies in this type of situation has been a vexed question, not only in Scots law, but in many other jurisdictions. This article looks at the Scottish approach to the availability of enrichment remedies and also at the related question of whether it is possible for title to goods to pass under an illegal contract. The focus thereafter lies on options for reform, and, in particular, the use of legislative discretion.

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ZIMMERMANN, REINHARD. "Unjustified Enrichment: The Modern Civilian Approach." Oxford Journal of Legal Studies 15, no. 3 (1995): 403–29. http://dx.doi.org/10.1093/ojls/15.3.403.

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MacQueen, Hector. "The Sophistication of Unjustified Enrichment: A Response to Nils Jansen." Edinburgh Law Review 20, no. 3 (September 2016): 312–25. http://dx.doi.org/10.3366/elr.2016.0361.

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In this article, Professor Hector MacQueen offers a Scots law response to the recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author argues that unjustified enrichment provides, and continues to provide, a useful “generalising” concept, the creative effects of which are far from spent (at least in Scotland).

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Leslie, Robert. "Unjustified Enrichment in the Conflict of Laws." Edinburgh Law Review 2, no. 2 (May 1998): 233–41. http://dx.doi.org/10.3366/elr.1998.2.2.233.

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Whitty, Niall R. "Unjustified Enrichment and Burnett's Trustee v Grainger." Edinburgh Law Review 8, no. 3 (September 2004): 395–400. http://dx.doi.org/10.3366/elr.2004.8.3.395.

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Campbell, Mat. "Unjustified enrichment and statute: Pert v McCaffery." Edinburgh Law Review 24, no. 3 (September 2020): 400–404. http://dx.doi.org/10.3366/elr.2020.0653.

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Ranieri, Filippo. "Cases, Materials and Texts on Unjustified Enrichment." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 122, no. 1 (August 1, 2005): 1001–4. http://dx.doi.org/10.7767/zrgga.2005.122.1.1001.

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Visser, Daniel, and Niall R. Whitty. "The Role of Interest in Unjustified Enrichment Claims." Edinburgh Law Review 25, no. 1 (January 2021): 48–88. http://dx.doi.org/10.3366/elr.2021.0673.

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This essay addresses the question: when should pre-citation interest be awarded in actions for unjustified enrichment in Scots law? The answer depends mainly on the definition of the elements of enrichment liability, the manner of acquiring the enrichment, the type of enrichment-debtor, and his or her state of mind. The essay argues that (a) generally the actual interest earned (or saved) should be awarded, aided by a rebuttable presumption that interest was earned at a specified rate; (b) interest should normally be awarded at market rates where the defender knows that s/he holds the money or asset unjustifiably; and (c) in enrichment by interference with the pursuer's rights to money or other assets, an interest award might represent the time-value of exercising those rights during the period of interference.

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Hellwege, Phillip. "Book Review: Chris Thomale's Leistung als Freiheit: Erfüllungsautonomie im Bereicherungsrecht." German Law Journal 15, no. 3 (May 1, 2014): 501–10. http://dx.doi.org/10.1017/s2071832200019015.

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Chris Thomale's Leistung als Freiheit is the printed version of his Berlin doctoral thesis of 2011 (Freie Universität) which was supervised by Martin Schwab. The title of the book will most probably be meaningless or even be misleading to non-German readers: Leistung als Freiheit translates to “Performance as Freedom.” The subtitle will not be of any help to non-German readers, either: Erfüllungsautonomie im Bereicherungsrecht means “Autonomy of Performance in the Law of Unjustified Enrichment.” The subtitle points to the area of law to which the book is devoted—the law of unjustified enrichment—and within the law of unjustified enrichment, to those cases which are commonly—and not only in German law—labeled as enrichment by performance or enrichment by deliberate conferral. In German law, and also in other civil law systems, the different condictiones are joined together under this label.

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Hedley, Steve. "“Farewell to Unjustified Enrichment?” – A Common Law Response." Edinburgh Law Review 20, no. 3 (September 2016): 326–37. http://dx.doi.org/10.3366/elr.2016.0362.

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In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

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Mertvischev, Anton V. "Collection of Means of Subsistence as Unjustified Enrichment." Jurist 10 (October 3, 2019): 51–58. http://dx.doi.org/10.18572/1812-3929-2019-10-51-58.

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Campbell, Mat. "Equity flailing? Against ad hocery in unjustified enrichment." Edinburgh Law Review 22, no. 3 (September 2018): 393–98. http://dx.doi.org/10.3366/elr.2018.0507.

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15

Giglio, F. "A Systematic Approach to 'Unjust' and 'Unjustified' Enrichment." Oxford Journal of Legal Studies 23, no. 3 (September 1, 2003): 455–82. http://dx.doi.org/10.1093/ojls/23.3.455.

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Schermaier, Martin Josef. "’Performance-Based’ and ’Non-Performance Based’ Enrichment Claims: The German Pattern." European Review of Private Law 14, Issue 3 (June 1, 2006): 363–89. http://dx.doi.org/10.54648/erpl2006020.

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In Germany, the opinion is commonly held that the general provision of § 812 (1) BGB, according to which the one enriched has to restore what he acquired without legal cause to the one at whose expense the enrichment occurred, is the basis of two different claims. This attitude is of ancient origin; it can be traced back to the general rule stated by Pomponius on the one hand and the distinction between two types of claims for restitution in roman-common law on the other. Nevertheless, the separation of the two types of claims is nowadays regarded as an unquestionable dogmatic truth. Both theory and practice divide the general clause into two different formulas. The article shows that it is indeed reasonable to distinguish restitution following unjustified performance from restitution following unlawful interference with another?s property. At the same time it refutes the commonly held opinion which, concentrating on the concept of performance (Leistung), separates two different claims of unjustified enrichment. The two forms of claims of unjustified enrichments can rather be described as two sides of the same coin. To distinguish them may not mean to separate them.

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Zyl, Deon H. van. "Unjustified Enrichment: Volume 1: Enrichment by Deliberate Conferral: Condictio, Robin Evans-Jones." Edinburgh Law Review 9, no. 1 (January 2005): 180–83. http://dx.doi.org/10.3366/elr.2005.9.1.180.

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Evans-Jones, Robin, and Phillip Hellwege. "Some Observations on the Taxonomy of Unjustified Enrichment in Scots Law." Edinburgh Law Review 2, no. 2 (May 1998): 180–217. http://dx.doi.org/10.3366/elr.1998.2.2.180.

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This article examines the basis for Stair's classification of obediential obligations into restitution, recompense and reparation. It then provides an overview of how this classification was developed by the institutional writers who followed Stair. The development has resulted in the expression of the law of unjustified enrichment in terms of restitution, repetition and recompense (the three “Rs”). It will be suggested that the nature of this classification has been misunderstood by modern scholars. It will be shown how, when properly understood, the classification creates no obstacle to a unitary treatment of causes of action arising within a body of law called “unjustified enrichment”. How certain central aspects of the Scots law of unjustified enrichment should be organised is also considered.

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Letelier, Pablo. "ANOTHER CIVILIAN VIEW OF UNJUST ENRICHMENT'S STRUCTURAL DEBATE." Cambridge Law Journal 79, no. 3 (November 2020): 527–48. http://dx.doi.org/10.1017/s0008197320000550.

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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.

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van Maanen, Gerrit E. "Subsidiarity of the Action for Unjustified Enrichment - French Law and Dutch Law: Different Solutions for the Same Problem." European Review of Private Law 14, Issue 3 (June 1, 2006): 409–21. http://dx.doi.org/10.54648/erpl2006023.

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The beauty of the enrichment action is that it offers well-trained lawyers a useful tool for filling gaps in our legal system. Enrichment actions should only be grounded on the basis of positive arguments within the system. I will argue that in most cases where laymen (or judges for that matter) at first sight think that an action based on unjustified enrichment could and should succeed, the well-trained lawyer would deny such an action. In most developed legal systems there are specific techniques to make sure that the legal professional is able to decide which claim must be granted and which claim must be denied. In this paper the focus is on two specific requirements for the action of unjustified enrichment: the French principle of subsidiarity and the principle of impoverishment as applied in Dutch enrichment law. In both French and Dutch law the understanding and interpretation of the two techniques is dependant on the basic assumption about the role of the action for unjustified enrichment within the legal system. Is it an ultimate remedy for situations which are not covered by the ?normal? rules of the system or is it an equity device which can alter the normal application of the rules of the legal system?

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Descheemaeker, Eric. "New Directions in Unjustified Enrichment: Learning from South Africa?" Edinburgh Law Review 18, no. 3 (September 2014): 414–16. http://dx.doi.org/10.3366/elr.2014.0236.

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22

West, Euan. "The Interaction of Rights of Relief and Unjustified Enrichment in Scots Law." Edinburgh Law Review 24, no. 2 (May 2020): 202–31. http://dx.doi.org/10.3366/elr.2020.0627.

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In Scots law, a cautioner (i.e. a guarantor) who pays the guaranteed debt enjoys so-called “rights of relief” against the other parties liable for that debt: namely, a right to full compensation from the principal debtor (“total relief”) and a right to partial compensation from co-cautioners (“pro rata relief”). There has been an increasing tendency on the part of the Scottish courts to treat these rights of relief as a branch of the law of unjustified enrichment. This analysis, according to which a cautioner's payment of the guaranteed debt enriches the principal debtor and co-cautioners unjustifiably, thereby entitling the cautioner to redress, has been subject to academic criticism, with “enrichment” scholars arguing that rights of relief and unjustified enrichment are distinct areas of law. Building on the work of these scholars, this article explores the precise nature of the distinction between “enrichment” and “relief”, its implications for litigants faced with the choice whether to pursue a case on the basis of “relief” or “enrichment” and the extent to which these legal areas perform complementary roles.

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Mitchell, Charles. "Claims in Unjustified Enrichment to Recover Money Paid Pursuant to a Common Liability." Edinburgh Law Review 5, no. 2 (May 2001): 186–220. http://dx.doi.org/10.3366/elr.2001.5.2.186.

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This article discusses claims in unjustified enrichment to recover money paid pursuant to a common liability, and considers how the principles underlying such claims are reflected in the pleading rules which govern them. The discussion includes claims in unjustified enrichment to recover money paid pursuant to those joint, joint and several, and several liabilities which are owed to the same third party in respect of the same debt or damage. Comparisons are drawn with similar claims under Roman and German law, and the decision of the Inner House in Caledonia North Sea Ltd v London Bridge Engineering Ltd1 is reviewed.

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Snijders, Wouter. "From Pomponius to Article 6:212 Dutch Civil Code - The Vicissitudes of a Tradition." European Review of Private Law 14, Issue 3 (June 1, 2006): 391–97. http://dx.doi.org/10.54648/erpl2006021.

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Tradition is a volatile phenomenon in law as in literature. Legal scholars have claimed the existence of a tradition concerning unjustified enrichment as a source of obligations. Has this alleged tradition influenced the provisions in the Dutch civil code on unjustified enrichment? The answer must be ambiguous. History, as such, is not a convincing source of inspiration for modernizing civil law. But as one of the workers on this part of the Dutch code I cannot deny a certain psychological effect of this tradition, even if invented. Such inventions make fascinating reading and stick to the mind.

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Macgregor, Laura J., and Niall R. Whitty. "Payment of Another's Debt, Unjustified Enrichment and ad hoc Agency." Edinburgh Law Review 15, no. 1 (January 2011): 57–87. http://dx.doi.org/10.3366/elr.2011.0004.

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Lutman, Karmen. "Unjustified enrichment in relation to contract, tort and property law." Anali Pravnog fakulteta u Beogradu 68, no. 2 (2020): 100–122. http://dx.doi.org/10.5937/analipfb2002100l.

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Kurniawan, Faizal, Erni Agustin, and Rizki Amalia. "UNSUR KERUGIAN DALAM UNJUSTIFIED ENRICHMENT UNTUK MEWUJUDKAN KEADILAN KOREKTIF (CORRECTIVE JUSTICE)." Yuridika 33, no. 1 (February 8, 2018): 19. http://dx.doi.org/10.20473/ydk.v33i1.7201.

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Recent development to claim damages on the basis of either wanprestatie or onrechtmatige daad would not provide saticfactory grounds to the question of justice. There will be a situation in which that no one shall be unjustly enriched at the expense of another which all outside the scope of contract and tort. This has led to the existence of an independent legal doctrine known as unjust enrichment. It is among the most debated private law subjects today in asking for justice. Corrective justice brings to the remedial relation between the plaintiff and the defendant; it is solely concerned with the norm of justice that provides reasons to restitution. Corrective justice properly evaluates the structure of injustness to the both sides, the plaintiff and the defendant. It gives effect to restitutionary proprietary interests rather than compensatiton. This article elaborates the law of unjust enrichment as ground for restitution in conjunction with the corrective justice. Furthermore, this article focuses on the theoritical foundation of corrective justice to meet the unjustified enrichment criteria.

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Serfontein, Jan-Louis. "What is wrong with modern unjustified enrichment law in South Africa?" De Jure 48, no. 2 (2015): 388–410. http://dx.doi.org/10.17159/2225-7160/2015/v48n2a7.

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Evans-Jones, Robin. "Causes of Action and Remedies in Unjustified Enrichment: Satchwell v McIntosh." Edinburgh Law Review 11, no. 1 (January 2007): 105–9. http://dx.doi.org/10.3366/elr.2007.11.1.105.

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Schrage, Eltjo J. H. "Unjustified Enrichment: Recent Dutch developments from a comparative and historical perspective." Netherlands International Law Review 46, no. 01 (May 1999): 57. http://dx.doi.org/10.1017/s0165070x00002096.

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Swann, Stephen. "A guide to the principles of European law on unjustified enrichment." ERA Forum 7, no. 2 (June 2006): 234–43. http://dx.doi.org/10.1007/s12027-006-0006-z.

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Sobczyk, Marek. "POJĘCIE ‘CAUSA’ W ŹRÓDŁACH PRAWA RZYMSKIEGO ODNOSZĄCYCH SIĘ DO BEZPODSTAWNEGO WZBOGACENIA." Zeszyty Prawnicze 11, no. 1 (December 21, 2016): 269. http://dx.doi.org/10.21697/zp.2011.11.1.15.

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THE CONCEPT OF ‘CAUSA’ IN THE SOURCES OF ROMAN LAW RELATED TO UNJUSTIFIED ENRICHMENT Summary In this paper I analyze the meaning of causa in the sources of Roman law in fourth, fifth, sixth and seventh title of the twelfth book of Digest’s. The aim of my study is to participate in the contemporary discussion on several crucial issues of Roman conception of unjustified enrichment. In my opinion research into the concept of causa can contribute to the better evaluation of the theories on causa condictionis, causa dandi, causa retinendi, the theory that datio sine causa was the central concept of Roman unjustified enrichment, as well as the theory that datio was a basic precondition of the application of condictio. I come to a general conclusion that causa had several different meanings: a) causa as an qualification of the fact that a benefit is in the hands of another person; b) causa which related to the legal basis of acquisition of a benefit; c) causa which related to the way in which a benefit was acquired; d) causa as a motive or an objective of the performance; e) causa which related to the basis of a promise of performance; f) causa which justified the retention of a benefit. Neither of the abovementioned meanings of causa corresponds to the causa condictionis understood in the abstract way as a ground for claims common to all condictiones, a common idea of the remedy for the recovery of an unjust enrichment. Only the last meaning related to the conception of causa retinendi. The theory that datio sine causa was the central concept of Roman does not seems to be justified.

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Wu, Zhicheng, and William Swadling. "Unjustified enrichment in the Chinese Civil Code: questions from the common law." Asia Pacific Law Review 29, no. 2 (July 3, 2021): 402–21. http://dx.doi.org/10.1080/10192557.2022.2033081.

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Eiselen, Sieg. "David Johnston and Reinhard Zimmermann (eds.), Unjustified Enrichment: Key Issues in Comparative Perspective." Edinburgh Law Review 8, no. 2 (May 2004): 281–83. http://dx.doi.org/10.3366/elr.2004.8.2.281.

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Dajczak, Wojciech. "Świadczenie niegodziwe – trudne dziedzictwo rzymskiej inspiracji." Studia Iuridica 72 (April 17, 2018): 101–19. http://dx.doi.org/10.5604/01.3001.0011.7590.

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Incorporating the rules inspired by the Roman condictio ob turpem causam into modern regulations of unjustified enrichment provokes criticism. Such regulations are diversified into several models but mostly invoke controversies. The main goal of this paper is evaluating these critical opinions and doubts repeated in legal discourse using historical and comparative methods. Author focuses on five issues: usefulness of condictio ob turpem causam in the light of works of ius commune jurists; doubts concerning the principle in pari turpitudine melior est conditio possidentis; different approach of various European legislators to the idea of condictio ob turpem causam; relation between regulations of unjustified enrichment and unenforceability of agreements contrary to the o law and good customs; importance of the restitution of payments contrary to the law and good customs for today’s legal practice. The conclusions of such analysis allow to admit that doubts concerning the continuation of the Roman condictio ob turpem causam are justified. From the other side, in times of multicultural societies and increasing number of legal regulations the growth of disputes resulted from the payments contrary to law and good customs can be observed. The rejection of repayment based on the contrary to the objective good faith offers – according to the author – the best compromise between weak points of Roman condictio ob turpem causam and challenges of modern practice. In the legal reasoning it is expressed by the maxime „no one shall be heard, who invokes his own guilt”.Incorporating of this maxime into the unjustified enrichment is all the more justified when higher could be in legal practice doubts concerning the acceptability of rejection of restitution of the payment with has been made without legal ground but in the contrary to the principle of good faith.

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Rodger, Barry J. "The Interface Between Competition Law and Private Law: Article 81, Illegality and Unjustified Enrichment." Edinburgh Law Review 6, no. 2 (May 2002): 217–43. http://dx.doi.org/10.3366/elr.2002.6.2.217.

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Private enforcement through private party litigation is to play a central role in the enforcement of the European Community competition rules. However, there has so far been little case-law in the national courts to explore in detail the range of issues concerning the award of remedies for breach of the competition rules, principally arts 81 and 82 of the EC Treaty. This article considers the particular position of a cocontractor seeking to claim damages in unjustified enrichment in respect of a contract which is prohibited by art 81 and illegal. The Scots law position on the general question of recovery of damages with regard to an illegal contract is discussed, together with some recent English cases involving a breach of art 81. The article looks at the development of Community jurisprudence laying down the requirement for national courts to provide legal redress and to ensure the effectiveness of Community law. Finally, it considers the recent ruling by the European Court of Justice in Courage v Crehan on a reference from the Court of Appeal.

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MacQueen, Hector. "Restitution upon Rescission for Breach of Contract, Mutuality, and Unjustified Enrichment: Lyle v Webster." Edinburgh Law Review 23, no. 2 (May 2019): 278–83. http://dx.doi.org/10.3366/elr.2019.0558.

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Filios, Christian P. "Unjustified Enrichment Based on Interference With Another’s Property in French and Greek Legal Order - The Specific Problem of the Requirement ’At the Expense of Another’." European Review of Private Law 14, Issue 3 (June 1, 2006): 327–49. http://dx.doi.org/10.54648/erpl2006018.

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Unjust enrichment and civil delictual liability are but the two sides of the same coin, having the same scope without overlapping, juridically speaking. This is obvious when enrichment arises from an illegal interference with another?s property. The French and the Greek legal order seem to be two legal systems maintaining until today the Einheitslehre of unjust enrichment claims. Both orders do not take into account a categorization and a systematization of claims in accordance with the requirements giving rise to an unjust profit. Regardless of the special provisions of each legal system, crucial questions arise in the same way: Would it be possible to consider, under the same perspective, enrichment by undue payment and enrichment due to the forces of nature (e.g. confusio or commixtio)? Is it possible to find a common denominator, as regards the causa, between enrichment with performance and enrichment without performance? How to compare enrichment produced by a person?s interference with another?s property with enrichment born by an undue payment? Is it not rather reasonable to proceed with the theory of separation of claims (Trennungslehre) proposed by German legal scholarship, after Wilburg?s and Von Caemmerer?s legal model of distinction between enrichment based on performance and enrichment not based on performance?

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Scott, H. "Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment." Acta Juridica 2021 (2021): 343–73. http://dx.doi.org/10.47348/acta/2021/a13.

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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.

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Simvolokov, Oleg A. "Legal Qualification of Estimation of Gas by Calculation in View of the Unjustified Enrichment Doctrine." Civil law 5 (September 11, 2019): 42–45. http://dx.doi.org/10.18572/2070-2140-2019-5-42-45.

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Hogg, Martiri. "Judicial Attitudes to Unjustified Enrichment: The Conservative Nature of Morgan Guaranty v Lothian Regional Council." Edinburgh Law Review 1, no. 3 (May 1997): 381–85. http://dx.doi.org/10.3366/elr.1997.1.3.381.

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Khutor, Tetiana. "Unjustified Assets Forfeiture: a Hidden Type of Punishment?" NaUKMA Research Papers. Law 7 (July 20, 2021): 61–70. http://dx.doi.org/10.18523/2617-2607.2021.7.61-70.

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The purpose of this article is to determine whether the forfeiture of assets as a result of declaring them unjustified should be considered as a penalty.Provisions governing the recognition of assets unjustified and its further forfeiture in the state revenue (RAS) were introduced into the Civil Procedural Code of Ukraine in 2015 and were criticized by the scientific community due to the similarities with the special confiscation provided by the Criminal Code of Ukraine, and were never implemented in practice. However, at the end of 2019, the essence of these provisions was dramatically changed via a combination of a foreign model of “non-conviction based forfeiture” and certain features of the crime of illicit enrichment. Right after the adoption of these new provisions, the members of the Ukrainian parliament initiated the constitutional petition. They claim that the RAS, being, in essence, a punishment, unreasonably deprives the party of protecting its rights and guarantees provided by the criminal legislation of Ukraine.Given the foreign origin of this legal mechanism and that this type of penalty was introduced into Ukrainian law not so long ago, the methodology of this research covers both analysis of current legislation, research of Ukrainian and foreign scholars, and the case-law of the European Court of Human Rights. The analysis allowed us to assess to which extent the procedure, severity, nature, and objectives of unjustified assets forfeiture coincide with the procedure, severity, nature, and objectives of punishment.The results suggest that such a penalty can be considered as a punishment neither under the European Convention on Human Rights nor national legislation, as it does not, inter alia, prove or disprove the facts of any offense or the connection of assets with any offense and is not intended to punish and prevent from committing other offenses. Given the fundamental nature of the issue under investigation in the context of its constitutional appeal and the lack of practice of applying such a penalty in Ukraine as of the preparation of the present research, the article has theoretical and practical importance.

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Wiese, Mitzi. "The The Legal Operation of Liens: Theory and Practice." Potchefstroom Electronic Law Journal 24 (February 19, 2021): 1–23. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a8721.

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The legal operation of liens has been the source of academic debates for many years. Liens are traditionally classified as enrichment liens and debtor-and-creditor liens (contractual liens). In the instance of an enrichment lien the creditor (lienholder) has a contract with a non-owner and not with the owner (debtor) himself. Consequently, the creditor can vest a lien against the owner of the thing only on the grounds of unjustified enrichment. Enrichment liens are classified as real rights. In the instance of a debtor-and-creditor lien (contractual lien) the creditor (lienholder) has a contract with the owner of the thing and the contract is the basis for the liability of the owner (debtor) towards the creditor. Debtor-and-creditor liens are generally classified as personal rights. This classification causes confusion regarding the legal operation on the one hand of an enrichment lien as a real right and on the other hand of a debtor-and-creditor lien (contractual lien) as a personal right. This paper proposes that the origin of the legal claim for which the lien serves as security (unjustified enrichment or contractual) merely determines the debt (expenses) for which a lienholder can vest his lien and does not determine the classification of a lien as either a real right or a personal right. A lien can be described as a defence against the owner's rei vindicatio and is, in principle, enforceable only against the owner of the thing (security object). A lien can, however, also be enforced against parties other than the owner, including the creditors (who, for example, want to attach the thing subject to the lien) of the owner (debtor) and other real claimants. The enforcement of a lien against these parties is referred to as the real operation (third-party action) of a lien. This paper analyses the legal operation of a lien with specific reference to the debt (expenses incurred) secured by the lien, the vesting (existence) of a lien, the real operation (third-party action) of a lien and the preferential position of a lienholder in the case of the debtor' insolvency.

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Mächtel, Florian. "The Defence of “Change of Position” in English and German Law of Unjust Enrichment." German Law Journal 5, no. 1 (January 1, 2004): 23–46. http://dx.doi.org/10.1017/s2071832200012232.

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In its § 142(1) theAmerican Restatement of the Law of Restitutionprovides that “[t]he right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.” The notion that the recipient of an unjustified benefit must in principle return not more than the enrichment that has actually “survived” in his hands, is not only fundamental to the American law of restitution, but can also be found in English and German law.

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Baeck, Joke, and Ton Hartlief. "Goodwill Compensation after Termination of a Franchise Contract: Comparative Perspectives on Cour de Cassation 23 October 2012 (No. 11-21.978)." European Review of Private Law 22, Issue 6 (December 1, 2014): 955–59. http://dx.doi.org/10.54648/erpl2014069.

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Abstract: In the case decided by the French Cour de Cassation on 23 October 2012, a franchisee invoked the rules on unjustified enrichment to claim compensation for loss of clientele (also referred to as 'goodwill compensation') resulting from the termination of the franchise contract. The Cour de Cassation dismissed the claim of the franchisee, stating that the rules on unjustified enrichment may not be invoked if the alleged enrichment of the defendant and the alleged impoverishment of the claimant find their justification in the execution or termination of a contract entered into by the claimant and the defendant. The following reports examine how this case would be resolved in seven other European jurisdictions - Belgium, Estonia, Germany, Ireland and the United Kingdom, Italy and the Netherlands - as well as under the Draft Common Frame of Reference. The overall conclusion is that all the examined jurisdictions are reluctant to allow an unjustified enrichment claim for loss of clientele after termination of a franchise contract. However, in almost all the examined jurisdictions, legal scholars and courts seem to look for alternative ways to grant a franchisee, under certain conditions, a goodwill compensation after termination of the franchise contract, e.g. by applying the specific statutory rules concerning commercial agency by way of analogy to franchisees. Résumé: S'étant vu notifier la fin de son contrat de franchise, un franchisé avait invoqué les règles de l'enrichissement sans cause pour obtenir du franchiseur une indemnité pour perte de clientèle. Dans son arrêt du 23 octobre 2012, la Cour de cassation française rejette cette demande, en statuant que « les règles gouvernant l'enrichissement sans cause ne peuvent être invoquées dès lors que l'appauvrissement et l'enrichissement allégués trouvent leur cause dans l'exécution ou la cessation de la convention conclue entre les parties ». Les rapports suivants examinent comment cette affaire serait résolue dans sept autres juridictions européennes - en Allemagne, en Belgique, en Estonie, en Irlande et au Royaume-Uni, en Italie et aux Pays-Bas - ainsi que selon les règles du Projet de cadre commun de référence. La conclusion générale est que toutes les juridictions examinées sont réticentes à accorder au franchisé, sur le fondement de l'enrichissement sans cause, une indemnité pour perte de clientèle après la cessation du contrat de franchise. Toutefois, dans la plupart des juridictions examinées, des auteurs et des juges cherchent des solutions alternatives pour accorder au franchisé, sous certaines conditions, une indemnité pour perte de clientèle après la cessation du contrat de franchise, notamment en appliquant les règles spécifiques du contrat d'agence commerciale par analogie au contrat de franchise.

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Carnelley, Marita. "Liability for the Payment of Public School Fees." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 6 (June 9, 2017): 33. http://dx.doi.org/10.17159/1727-3781/2011/v14i6a2607.

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The author highlights some legal issues regarding the liability of parents and other individuals to pay public school fees in the light of recent judicial precedent, specifically Fish Hoek Primary School v GW 2009 JOL 24624 (SCA). The various possible legal bases for the liability for such fees are examined. In this regard the common law duty to maintain as amended by legislation; contractual liability; and the concepts of household necessaries, stipulatio alteri, negotiorum gestio and unjustified enrichment are considered.

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Núñez Cádiz, Ricardo. "La naturaleza jurídica y caracteres de la acción del artículo 669 inciso 1° del Código Civil chileno." Latin American Legal Studies 8 (May 3, 2021): 207–65. http://dx.doi.org/10.15691/0719-9112vol8a5.

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In the present work the legal nature of the action established on article 669 paragraph 1° of the Chilean Civil Code is explored; even though it seems to be agreement as to what a restitutionary reimbursement is, this is not asserted enough, which generates difficulties at the judicial level. Indeed, concerning the action of reimbursement granted by article 669 paragraph 1°, no distinction has been drawn between the restitutionary and compensatory character of the norm. Having an unduly property allocation taken place, the principle of unjustified enrichment imposes the obligation of restituting, thus not being required a correlative impoverishment in order to claim the restitutionary reimbursement, since the action is not aimed at compensating the impoverished, but to recovered the unduly assigned enrichment, this way, regarding the studied action the stress muss shift from the amount of the impoverishment to the effective amount of the enrichment, so as not to apply the compensatory logic to the restitutionary reimbursement.

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Lee, Sang hoon. "Suum recepit in the Unjustified Enrichment Law －Focusing on the Delegation Cases of Classical Roman Law－." 법사학연구 ll, no. 55 (April 2017): 35–95. http://dx.doi.org/10.31778/lawhis..55.201704.35.

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von Bar, Christian. "The Principles of European Law (PEL) on benevolent intervention in another‘s affairs and on unjustified enrichment." ERA Forum 7, no. 2 (June 2006): 204–19. http://dx.doi.org/10.1007/s12027-006-0004-1.

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Sheehan, Duncan, and Malcolm D. Evans. "Book Review: Cases, Materials and Texts on Unjustified Enrichment, International Justice and the International Criminal Court." Common Law World Review 33, no. 1 (January 2004): 97–102. http://dx.doi.org/10.1350/clwr.33.1.97.25830.

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Journal articles on the topic 'Unjustified enrichment'

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