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Essay on restitution obligations throughout Europe

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  1. Introduction.
    1. A general remedy for unjust enrichment.
    2. The developments of two main French writers Aubry and Rau.
    3. The law of restitution: Recognised in common law and in civil law alike.
  2. General considerations on the differences between common and civil law approach of the law of restitution.
    1. Apparent structural divergence.
    2. In favour of the common law of restitution.
  3. A narrower approach of civil and common law approach: A study of the different factors which justify claim for restitution.
    1. Mistake.
    2. Unjust enrichment and contract.
    3. The failure of consideration as a factor of restitutionary claim.
    4. Fraud and duress v dolus and violence.
    5. Performance of another's obligation.
  4. The change of position.
  5. Conclusion.
  6. Bibliography.

Restitutionary obligation is the response to unjust enrichment. Unjust Enrichment at the expense of another must be restituted in order to secure a corrective justice. On this very basis restitutionary, as opposed to compensation, aims to deprive the defendant of a gain rather than to compensate the plaintiff for the loss suffered. The aim of restitutionary obligation is the same in both common and civil law since the Roman jurist Pomponius wrote: ?nam hoc natura aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem.?, ?by the law of nature it is right that nobody should be unjustly enriched at another's expense.? The Roman influence is of great importance in the development of the law of restitution. Its influence is more perceivable in civil law countries as there is a ?continuing influence of Roman ideas and Roman legal method on Continental systems of law.? The common and civil law approach of the law of restitution have different background from which results a different approach of the problem. Based on Roman law and especially on three remedies, the civil law of restitution result of a long evolution. Classical Roman law did not offer a general remedy for unjust enrichment but offered three specific remedies: the condictio enables a plaintiff who had paid money or delivered goods in error to obtain back the money or goods; the negotiorum gestio enables one who acted in an emergency in the interest of another, without previous authority to be compensated for his altruistic behaviour; finally the actio de in rem verso compels the paterfamilias to give back what he had obtained as a consequence of a contract executed by son.

[...] Even if the current civil law of restitution can be traced back to Roman law, it is clear that the common law of restitution has now reached a certain degree of development; as seen previously in this essay, it appears that ?English law certainly allows a plaintiff to sue in most of the situations where he would have a claim for enrichment on the Continent.?[66] So that broadly speaking one can assume that in civil and common law there is recognition that one cannot be unjustly enriched at the expense of another. [...]


[...] The House of Lords held that the pre - payment was recoverable in principle on the grounds that it had been given for a consideration that had failed. It appears that the payment being made without any thing in exchange, there is no consideration so that there is a right for restitution. The doctrine of failure of consideration has always been regarded as only applicable where that failure of the promised performance is complete or total. Any partial performance constitutes a bar to restitution. [...]


[...] On this point therefore the civil law of restitution is not more developed than the civil law one Performance of another's obligation Sometimes, without any relation with any contract, someone will perform another's obligation. The most significant example to understand this situation is the case of someone who is on holiday. His window is broken while he is absent. In order to avoid any risk of robberies his neighbour arranges with a glazier to have it repaired. The issue for such a situation is to know whether the neighbour can claim for restitution of the sum he spent for the reparation of the window. [...]

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