Non-contractual obligations

47.General. Most of the rules on obligations and corresponding rights in Book III apply to non-contractual as well as contractual obligations. Many of the points made above for contractual obligations therefore apply equally to non-contractual obligations. Moreover, most of the aspects of justice mentioned above feature strongly in the rules in Books V to VII.

48.Not allowing people to gain an advantage from their own unlawful, dishonest or unreasonable conduct. An example of this aspect of justice in Book VI is the rule denying reparation (where to allow it would be contrary to public policy) for damage caused unintentionally by one criminal collaborator to another in the course of committing an offence.96 It has already been noted that the law on unjustified enrichment recognises the principle that a wrongdoer is not permitted to profit from the exploitation of another’s rights. A noninnocent use of another’s assets as a rule creates an obligation to pay for the value of that use.97 There are also several rules in the Book in unjustified enrichment from which a person can benefit only if in good faith.98

49.No taking of undue advantage. The rules on benevolent intervention reflect the idea that it would be unfair to allow a person who has been assisted in an emergency by the kindness of a stranger to take advantage of that kindness. The assisted person is therefore obliged to pay at least the necessary expenses incurred. This idea is also at the root of the law on unjustified enrichment. The rules on unjustified enrichment primarily give effect to a deep-rooted principle of justice that one person should not be permitted unfairly to profit at another’s expense. Where one person, due to mistake, fraud or some equivalent reason, has conferred a benefit on another which

95II. – 8:103.

96VI. – 5:103.

97See in particular VII. – 4:101(c) and VII. – 5:102(1).

98See e. g. VII. – 4:103, VII. – 5:101(4), VII. – 5:102(2), VII. – 5:104(2), VII. – 6:101(2) and VII. – 6:102.

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would not have been conferred if the true circumstances had been known and the recipient has no countervailing reason to retain that benefit, other than that they have fortuitously received it, the recipient should not be permitted to retain the benefit to the prejudice of the person who was disadvantaged by conferring it.99

50.No grossly excessive demands. This aspect of justice is also found in Books V to VII. For example, it is at the root of rules which enable the normal entitlements of a benevolent intervener to be reduced in certain cases on grounds of fairness.100 There are similar rules allowing for an equitable reduction in Book VI.101 These reflect the fact that there may be a gross disproportion between the amount of blameworthiness and the amount of the damage caused: a very slight degree of negligence may cause enormous damage. This aspect of justice is also represented, as a countervailing consideration to the normal rules on liability, in the rules on unjustified enrichment. It is most relevant to the defence of disenrichment, where a person who has disposed of a benefit in good faith is protected.102 It would be unfair in such circumstances to burden an innocent recipient, who no longer has the benefit received, with the expense of the claimant’s mistake.

51.Responsibility for consequences. This aspect of justice features prominently in the rules of Book VI on non-contractual liability arising out of damage caused to another. It is the very basis of this branch of the law. Responsibility for damage caused does not rest on a contractual undertaking; it rests instead on intention, negligence or a special responsibility for the source of the damage. Everyone is entitled to rely on neighbours observing the law and behaving as can be expected from a reasonably careful person in the circumstances of the case. It is a requirement of fairness that an employer should be responsible for damage which an employee has caused in the course

99VII. – 1:101.

100V. – 3:104. Paragraph (2) allows regard to be had to “whether the liability of the principal would be excessive”.

101VI. – 6:202.

102VII. – 6:101.

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