!!Экзамен зачет 2023 год / The Law of Obligations

Court has also applied it in a great number of precedents,355 the matter can for all practical purposes be regarded as settled. The rule expressed in § 812 BGB is usually taken to have two largely independent sides to it: the one, roughly speaking, quasi-contractual; the other quasidelictual in nature; and it is very widely interpreted to read:

"A person who acquires something without any legal ground (1) through an act performed by another or (2) at the expense of another in any other manner, is bound to render restitution."

Recognition of a general enrichment action has therefore been only a transitional phenomenon, but it has provided the basis for a rational reorganization of the rules and precedents in this area of the law.356

2.English law

(a)The basic options for the legal system

Unjustified enrichment is not a contextual category: it does not deal with one particular aspect of life, but tends to crop up in a broad variety of widely divergent circumstances.357 An error made in the course of discharging a contract of sale may give rise to an unjustified enrichment claim, but so can the break-up of a "de facto" marriage or the unauthorized use of someone else's photograph in a TV commercial. Unjustified enrichment may occur as a result of the mistaken payment of money, but it may also derive from the rendering of services, from the acknowledgement of the non-existence of a debt, or from the unlawful appropriation of someone else's property. As soon as a legal system is therefore prepared to transcend the basic contract/tort dichotomy, it is faced with the following dilemma. It may either develop a motley assortment of rules and remedies, clustering around individual types of factual situations and tending to develop their own language and technicalities.358 As a result, the law is in danger of becoming unnecessarily complex, diffuse, and even unintelligible. Or it may attempt to devise a unitary basis of enrichment liability, but then the general formula resulting from these efforts is bound to remain on

355Cf., for example, BGHZ 40, 272 sqq.; BGHZ 68, 276 (277); BGHZ 72, 246 (248 sq.); BGHZ 82, 28 (30); cf. further Otto Muh], "Wandlungen im Bereicherungsrecht und die Rechtsprechung des Bundesgerichtshofs", in: De iustitia et iure, Fest^abe fur Ulrich von Liibtow (1980), pp. 547 sqq.

356More recently, attempts to establish a uniform formula for all enrichment claims have been revived, but they have, so far, not had any influence on the courts; cf especially Christian-Michael Kaehler, Bereicherungsausglekh und Vindikation. AUgemeine Prinzipien der Restitution (1972); Kupisch, op. cit., note 349, pp. 19 sqq.; Wilhelm, op. rit., note 231,

pp.62 sqq., 173 sqq. The view that the new doctrine has stood the test of time is substantiated by Johannes Kondgen, "Wandlungen im Bereicherungsrecht", in: Dogmatik und Methode, Josef Esser гит 65. Geburtstag (1975), pp. 55 sqq. and Andreas Wacke, "Vorzuge und Nachteile des deutschen Bereicherungsrechts", in: Beitrage гит deutschen und israelischen Privatrecht (1977), pp. 131 sqq.

357Cf. also Zweigert/Kotz/Weir, p. 208: "The layman can make nothing of the

expression, and can hardly be blamed for it." 35M Cf. Birks, Restitution, p. 20.

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such an abstract level that it does not, in itself, lead to greater legal certainty either. Some form of typological fragmentation must therefore occur, certain structural refinements and conceptual tools have to be developed and a stable pattern of analysis be agreed upon, an indispensable harness preventing Pomponius' "natural justice" from running wild. Modern German law has, obviously, been following the latter of these two courses. Scores of legal writers are sternly marching on, with the heavy tread of German scholarship, through the enrichment forest:359 meticulously mapping the great trunk road 812, conscientiously exploring complex side-paths and penetrating with the most unrelenting scrupulousness the remotest corners of the dreaded third-party enrichment jungle. 36° So elaborate are the discussions that one may well ask whether the matter has not been taken too far and whether the results of all the theoretical efforts are really worth the trouble.361

(b) Rearing the backward child

English law, on the other hand, traditionally presents an entirely different picture.362 Bedevilled by historical accident and legalistic fiction,363 the law of restitution364 has remained something of a

354 Cf.T for example, the literature list provided by Lieb, op. cit., note 174, § 812, at the beginning.

60 On third-parry enrichment in German law cf., in particular, the influential study by Claus-Wilhelm Canaris, "Dcr Bereichcrungsausgleich im Dreipcrsonenverha'ltnis", in: Festschriftfiir Karl Larenz (1973), pp. 799 sqq.; cf. further the overviews by Reuter/Marlinek, op. cit., note 174, pp. 387-515; Lieb, op. cit., note 174, § 812, nn. 30-135 and Konig, Bereicherung, pp. 177 sqq. For a comparative analysis, see John P. Dawson, "Indirect

Enrichment", in: lus Privatum Gentium, Festschrift fiir Max Rheinstein, vol. II (1969), pp. 789 sqq.; Konig, Bereicherung, pp. 219 sqq. Of fundamental importance in this respect is the refusal, on the part of the legislator, to recognize the actio de in rern verso ("Motive", in: Mugdan, vol. II. pp. 871 sqq.; on the application of that remedy in 19th-century German law—it was essentially confined, again, to third-party enrichment cases such as the one discussed in C. 4, 26, 7, 3—see Rudolf von Jhering, "Mitwirkung fiir fremde Rechtsgeschaftc", (1857) 1 jhjb 330 sqq.; Windscheid/Kipp, § 483; Kupisch, Versionsktage, pp. 114 sqq.; Brandi, op. cit., note 273, pp. 47 sqq., 55 sqq.; Reuter/Martinek, op. cit., note 174, pp. 18 sqq.; Konig, Bereicherung, pp. 182 sqq,, 203 sqq.). The underlying policy in not allowing the plaintiff to sue the third party is hinted at already in the genuine part of C. 4, 26, 7, 3 (". . . eius personam elegisti"): the plaintiff has chosen the middleman as his contractual partner and has thus relied on the willingness and ability of the latter to honour his obligation, He must seek his reward where he has placed his trust and cannot now decide to turn against a third party who has acquired the benefit through the middleman. This policy is generally regarded as sound today: cf., for example, Zweigert/Kotz, pp. 294 sqq.; cf. also (de lege fcrenda) Konig, op. cit., note 354, pp. 1577 sqq.

3111 Karl Larenz, Lehrbuch des Schuldrechts, Besondercr Teil (11th ed., 1977), preface and p. 466; Konig, Bereicherung. p. 225 (from a comparative perspective). It has been pointed out repeatedly that the practical solutions to individual cases are not normally in dispute; cf. Konig, op. cit., note 354, p. 1520.

362 Zweigert/Kotz, p. 297: ", . . one appears to be entering another world."

~ ' For a brief summary of the development, cf. Dickson, (1987) 36 International and Comparative Law Quarterly 753: "Just as the law of contract developed out of the action in 'assumpsit', so, in turn, the law of quasi-contract developed out of the form of action known as 'indebitatus assumpsit'. Common heads of recovery under that action ('counts') were

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backward child of the legal family.365 An amorphous and somewhat muddled multitude of restitutionary remedies at law and in equity have come to be recognized over the centuries and are still entrenched in modern English law.366 "My Lords", as Lord Diplock stated emphatically in 1978,367

"there is no general doctrine of unjust enrichment recognised in English law. What it does is to provide specific remedies in particular cases of what might be classified as unjust enrichment in a legal system that is based upon the civil law."

It is, essentially, the fear of an indeterminate liability that motivates judicial pronouncements such as this. But there have also been courageous attempts to shake off the fetters of the past, to extricate the

'money had and received', 'money paid', 'quantum meruit', and 'quantum valebant'. Each of these counts had its own set of rules for determining whether recovery was allowable, and unless the plaintiff brought his or her action within one of them the action was bound to fail, except in the rare instance where a court of equity could step in to dojustice according to the particular circumstances of the case. A regrettable by-product of the employment of indebitatus assumpsit to remedy restitutionary claims was the importation of the 'implied contract' notion, whereby a claim could succeed only if the defendant could be said to have impliedly promised to grant it. This idea of a fictional contract impeded the development of the English law of restitution from the middle of the eighteenth century to the middle of the twentieth. It prevented plaintiffs from recovering against defendants when the contract between them was ultra vires, it barred actions against defendants who were too young or mentally imbalanced, and it restricted damages recoverable from a tortfeasor. Indeed, it could be said that the whole subject of quasi-contract, and of its modern manifestation, restitution, has suffered from its identification with the term 'contract' in much the same way as the subject of constructive trusts has been badly handicapped by its identification with the concept 'trust'."

For a detailed analysis of the development of implied assumpsit, see Simpson, History, pp. 489 sqq. On unjust enrichment and the concept of quasi-contract in English law, cf. Dawson, op. cit., note 119, pp. 9 sqq.; Goff and Jones, Restitution, pp. 5 sqq, and, most recently, Birks, Restitution, pp. 22, 29 sqq.; cf. also Birks/McLeod, (1986) 6 Oxford Journal of Legal Studies 46 sqq. Birks draws attention to the fact that "quasi ex contractu", as used in the fourfold Justinianic subdivision of obligations, means "as though upon a contract" (i.e., in reality there is none). The anglicized version "quasi-contract", on the other hand, has never lost the overtones of "sort of contract". This is why unjustified enrichment has been driven into the category of contract and is usually dealt with as a somewhat anomalous appendage to the law of contract. The traditional position is epitomized by Lord Haldane's statement in Sinclair v. Brougham [1914] AC 398 (HL) at 415: "[B]roadly speaking, so far as proceedings in personam are concerned, the common law of England really recognizes (unlike the Roman law) only actions of two classes, those founded on contract and those rounded on tort. When it speaks of actions arising quasi ex contractu it refers merely to a class of action in theory based on a contract which is imputed to the defendant by a fiction of law. The fiction can only be set up with effect if such a contract would be valid if it really existed." Birks, Restitution (p. 22): "When the law behaves like this you know it is in trouble, its intellect is either genuinely defeated or deliberately indulging in some benevolent dishonesty."

364On the relationship between restitution and unjust enrichment, see Birks, Restitution, pp. 16 sqq. ("Restitution and unjust enrichment identify exactly the same area of law. The one term simply quadrates with the other"). Is there a historical link with the restitution doctrine of the Spanish scholastics of the late Middle Ages (possibly via Grotius and Viscount Stair)? Cf. the suggestion by Coing, p. 191; cf, also supra, note 320.

365Birks, Restitution, pp. 2 sq., taking up a remark by H.W.R Wade, Administrative Law (1st ed., 1961), preface.

366For a comprehensive discussion, see Goff and Jones, Restitution, pp. 69 sqq.

367Orakpo v. Manson Investments Ltd. [1978] AC 95 (HL) at 104.

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unjust enrichment principle from its "quasi-contractual" niche and to break through to a general enrichment action. Such attempts date back to Lord Mansfield's famous ruling in Moses v. Macferlan, according to which "the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity" to render restitution.368 More recently, Sir Robert Goff and Gareth Jones, in their leading textbook on the law of restitution, have expressed the view that the law "is now sufficiently mature for the courts to recognize a generalized right to restitution".369 The "predominant principle", under which the restitutionary remedies have to be brought home, consists in their opinion of three elements: "firstly, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff's expense; and thirdly, that it would be unjust to allow him to retain the benefit."370 Lord Denning must be mentioned as a further prominent protagonist of the unjustified enrichment doctrine in the judicial sphere,371 and so must be, among the academic writers, Professor Birks of Oxford.372 Generally speaking, the opinion appears to be gaining ground these days that the recognition of generalized principles of enrichment liability does not necessarily lead to anarchy, but is in fact the only way of sorting out the present mess.373 Yet, there are also

368 (1760) 2 Burr 1005 (KB). For a most stimulating analysis of Lord Mansfield's use of his Roman learning in this case, see Peter Birks, "English and Roman Learning in Moses v. Macferlan", (1984) 37 Current Legal Problems 1 sqq. Generally speaking, the equitable principle enunciated in Moses v. Macferlan has not been well received; cf., for example, Holt v. Markham [1923] 1 KB 504 at 513 ("well-meaning sloppiness of thought"}; H.G. Hanbury, "The Recovery of Money", (1924) 40 LQR 35 ("Lord Mansfield definitely crossed the all too narrow bridge which leads from the sound soil of implied contract to the shifting quicksands of natural equity"); cf. further Dawson, op. cit., note 119, pp. 15 sqq.

369The Law of Restitution (2nd ed., 1978), pp. 13, 24.

370GofT and Jones, Restitution, pp. 13 sq. Birks, Restitution, pp. 7, 16 sqq., 20 sq. and passim proposes a very similar pattern of analysis: the defendant must have been enriched, he must have been enriched at the expense of the plaintiff, the enrichment must have been

unjust and there must be no other consideration that might bar the claim.

171 Cf, for example, Hussey v. Palmer [1972] 3 All ER 744 (CA); Eves v. Eves [1975] 3 All

ER 768 (CA), both decisions relating to the problem of "constructive trust".

372Cf., in particular, his splendid Introduction to the Law of Restitution (1985). The purpose of his book, as he himself describes it, is to find "the simplest structure on which the material in Goff and Jones can hang" (p. 3).

373For further indicia of this "wider movement by which Anglo-American common law has set about rectifying the error of having overlooked the subject for most of the century in which textbooks have re-shaped the law", see Birks, Restitution, p. 5; Michael Martinek, "Der Weg des Common Law zur allgemeinen Bereicherungsklage—Ein spater Sieg des Pomponius?", (1983) 47 RabelsZ 294 sqq., 305 sqq. Contra, most recently, Steve Hedley, "Contract, Tort and Restitution; or, On cutting the legal system down to size", (1988) 8 fournal of Legal Studies 137 sqq.; cf. also Atiyah, Rise and Fall, pp. 764 sqq. arguing that, while ideas of unjust enrichment permeate many aspects of the law, it would be wrong to extricate a separate body of law under that name; for a reply cf. Peter Birks, "Restitution and the Freedom of Contract", (1983) 36 Current Legal Problems 141 sqq.; on which, in turn, see P.S. Atiyah, Essays on Contract (1986), pp. 48 sqq. In Scotland restitution has been recognized as an established and independent source of obligations since the 17th century. For an analysis of the historical development, see Peter Birks, "Restitution: A View of the Scots

Law", (1985) 38 Current Legal Problems 57 sqq.

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indications that it is not a general enrichment action which will mark the end of all endeavours to rationalize this branch of the law. In the United States, the law of restitution has evolved very much along the lines mapped out by Lord Mansfield. The first important milestone was the recognition of the unjust enrichment principle in the Restatement of the Law of Restitution (1937). This principle has over the years been developed into a general, law-generating rule.374 But, at the same time, we find, starting with the Restatement, a disintegration of this general action into a new typology of enrichment claims.375 The task of reorganizing a diffuse and variegated mass of casuistry, under the auspices of a general rule, has also been tackled by some English authors. Goff and Jones, for example, have suggested a distinction between cases "where the plaintiff himself conferred the benefit on the defendant" and "where the defendant has acquired the benefit through his own wrongful act"376—a classification which is more than vaguely reminiscent of the German pair of "Leistungskondiktion" and "Ein^riffskondiktion". It may well turn out to be the starting point, if not for a convergence, then at least tor a rational and meaningful comparison between the Anglo-American common law and one of the major civilian jurisdictions.377

VI. THE MEASURE OF ENRICHMENT LIABILITY

1. The "weakness" of enrichment claims in German law

We have so far been looking at the requirements for liability deriving from unjustified enrichment. We must now still add a few words about the extent, or measure, of this liability. If we turn our attention, first of all, to modern German law, we find § 812 I 1 BGB merely providing that the recipient has to make restitution of whatever he has acquired without legal ground at somebody else's expense. Obviously, if restitution in kind is impossible on account of the nature of what the recipient has acquired, he is bound to make good the value.-578 But then there is a highly significant restriction placed upon all unjustified enrichment claims: the obligation to make restitution in kind, or to

374 (-?• Dawson, op. cit.. note 119, pp. 3 sqq., I l l sqq.

benefits").

3711 Restitution, pp. 43 sqq. Birks, Restitution, pp. 99 sqq. distinguishes between restitution for wrongs and restitution for unjust enrichment by subtraction. The latter category is subdivided according to three different factors rendering an enrichment unjust, namely nonvoiuntary transfer (in the sense of a transfer that, under the circumstances, the plaintiff did not want to happen), free acceptance (i.e. what is recognized in equity under the name "acquiescence") and other miscellaneous cases.

377 Martinek, (1983) 47 RabclsZ 318 sqq., 330 sqq.; Konig. op. cit., note 354, p. 1521. -17K «818 IIBGB.

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restore the value, is excluded in so far as the recipient has ceased to be enriched.379 Thus it is the enrichment creditor who is made to bear the risk of all events which adversely affect the economic benefit accruing to the recipient: the destruction or confiscation of the object concerned as well as, for example, the unfavourable consequences of imprudent investment decisions on the part of the recipient.380 This is the characteristic "weakness" of unjustified enrichment claims in German law:381 the defendant is liable only for his actual "enrichment" at the time of litispendence—of the amount, that is, by which all the advantages accruing to him from the event on which the enrichment action is based outweigh the associated or consequential disadvantages. Other modern legal systems tend to be less well disposed towards the recipient/defendant.382 What induced the German legislator to make enrichment claims so unattractive?

2. Instances of "weak** enrichment liability in Rome

Roman law knew this restricted version of enrichment liability only in certain rather exceptional situations.383 One of them has already been referred to briefly: the case of the pupillus who had concluded a contract without the authority of his tutor. According to a rescript of the Emperor Antoninus Pius, he could be held liable "in quantum locupletior fact[us] est";384 and when the question arose which point in time was relevant in order to establish the extent of his enrichment, the answer was given that the moment of litis contestatio had to be referred to:

"In pupillo, cui sine tutoris auctoritatc solutum est, si quaeratur, quo tempore sit locupletior, tempus quo agitur inspicitur."3"5

The same applied when spouses reclaimed what they had given to each other in contravention of the prohibition of donationes inter virum et uxorem.3"6

379 § 818 III BGB. But see §§ 818 IV, 819: from the time of litispendence or from the moment the recipient knows about the absence of a legal ground he is liable "under the general provisions" (§§ 292, 987 sqq. BGB); for further details, see Dawson, "Erasable Enrichment in German Law", (1981) 61 Boston University LR 277 sq., 303 sqq.

3K0 por an anajySjs of § 8ig ]]j antj of the casuistry that has developed in this regard, see Dawson, (1981) 61 Boston University LR 271 sqq.; Rcuter/Martinek, op. cit., note 174,

pp. 576 sqq.; Lieb, op. cit.. note 174, § 818. nn. 1 sqq.

381Cf, for example, Flessner, op. cit., note 341, p. 2.

382For a comparative analysis, cf. Flessner, op. cit.. note 341, pp. 37 sqq.; cf. also Konig, Bereichemng, pp. 51 sqq., 73 sqq.; Zwcigert/Kotz, pp. 316 sqq.; as far as American law is concerned, cf. John P. Dawson, "Restitution without Enrichment", (1981) 61 Boston

University LR 563 sqq.

383 Cf. supra, p. 882.

3K4 Ulp. D. 26. 8, 1 pr.; Ulp. D. 26, 8, 5 pr.

385Marci. D. 46, 3, 47 pr. For all details, see Hubert Niederlander, Die Bereichemngshajtung im ktassischen romischen Recht (1953), pp. 11 sqq., 56 sqq., 89 sqq.; Werner Flume, "Der Wcgfall der Bcreicherung in der Entwickkmg vom romischen zum geltendcn Recht", in:

Festschrift fur Hans Niedermeyer, 1953, pp. 124 sqq.

386On which see supra, p. 486.

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"[N]am ius constitutum ad eas donationes pertinet, ex quibus ct locupletior mulier et pauperior maritus in suis rebus fit"387—

this is how the range of transactions covered by the prohibition was usually described and the element of "locupletior" (enrichment) obviously played a crucial role.388 But it was also relevant in determining what the impoverished party was allowed to claim back. Again, therefore, the question was asked "[q]uod autem spectetur tempus, an locupletior [est facta]" and, again, it was held, in response, "verum est litis contestatae tempus spectari oportere".389

3. Liability of the defendant under the condictio

Normally, however, quite a different regime applied. The condictio was an actio stricti iuris and its formula did not, therefore, allow for any flexibility. The defendant, provided it could be established that he "appeared to have to give", was condemned in either the sum or the value of the object(s) that he had received. If 10 000 had been transferred to him by mistake, he owed 10 000 sesterces; if he had received a specific object, he was liable for "quanti ea res est, tantam pecuniam". As far as money was concerned, this was where the matter ended. The possibility that he might have spent or lost it, or that for any other reason he might be unable to return the very same coins that he had received, did not matter: "Quod indebitum per errorem solvitur, aut ipsum aut tantundem repetitur. "39° The recipient was in the same position as a borrower under a contract of mutuum391—he did not have to return the same objects but objects of the same kind and to the same value. That he was no longer "enriched" and was therefore unable to pay even "tantundem" was of no consequence for the existence of his obligation either: after all, payment of 10 000 sesterces always remained objectively possible. The same considerations applied with regard to objects "quae pondere numero mensura consistunt";392 the liability of the defendant always remained unimpaired, for the very reason that the objects "in obligatione" were merely reckoned by weight, number or measure.393 Matters looked different, though, where the defendant had received a specific, individual object (species). If this object was destroyed, he was normally automatically released from his obligation: it had become (objectively) impossible to give the

3H7Ter. Cl. D. 24. 1, 25.

ЗЯН por a|j details, see Karlheinz Miscra, Der Bereichenmgsgedanke bei der Schenkung unter Eheeatten (1974), pp. 6 sqq.

зйч Ulp. D. 24, 1, 7 pr.; Niederla'nder, op. cit., note 253, pp.' 11 sqq., 56 sqq., 67 sqq.; Flume, Festschrift Niedermeyer, pp. 116 sqq.; Miscra, op. cit., note 388, pp. 91 sqq., 189 sqq. For a detailed analysis of the reasons that may have induced the Roman lawyers thus to

restrict the plaintiff's claim, see Misera, op. cit., note 388, pp. 216 sqq., 248 sqq. 390 Pomp. D. 12, 6, 7.

341 Gai. III. 91; Inst. Ill, 14, 1.

392Paul. П. 12, 1, 2, 1; Gai. Ill, 90.

393Cf., for example, Marci. D. 19, 5, 25; Flume, Festschrift Niedermeyer, p. 130.

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object he was bound to give and "impossibilium nulla est obligatio".394 Yet under certain circumstances the obligation was deemed to be perpetuated: the defendant either had to have been in mora or the impossibility to perform must have come about as a result of his "fault".345 No fictitious perpetuatio obligationis was necessary— because the obligation remained unaffected—if the enrichment debtor had sold the object that he had received. It was still (objectively) possible to render restitution, and thus he could be condemned, without further ado, to pay the value. Only if the object that the defendant had sold in good faith was subsequently destroyed, did the perpetuatio obligationis construction have, once again, to be resorted to. As a rule, however, it did not provide the plaintiff with a cause of action either, since the destruction was not normally attributable to the defendant/vendor's fault. The result was therefore that the latter was released from his enrichment obligation.

4. Condictio pretii

Yet, if that would have been the end of the matter, he would have been left with a comfortable—and quite undeserved—gain: he was no longer exposed to a condictio and could at the same time keep the purchase price he had received from the third party, where the object had ultimately perished. It was in order to address this inequity that Julian allowed the plaintiff to institute an action for that purchase price; it had, after all, merely replaced the original object of the plaintiff's condictio in the defendant's property.

"Si cum scrvum, qui tibi Icgatus sit, quasi mihi legatum posscdenm et vendiderim, mortuo eo posse tc mihi prctium condiccrc lulianus ait, quasi ex re tua locupletior factus sim":34'1

the new claim was still referred to as condictio and it was obviously based on the idea of a surrogation. If this solution commended itself in cases where the object sold had been destroyed, it was also, arguably, appropriate if the object still existed. Whether the one or the other was the case, was, from the point of view of the relationship between plaintiff and defendant, entirely accidental. Why then should the practical result be different? Or, to put it slightly differently: why should the condictio pretii be a suitable device only to establish, and not also to limit, the defendant's liability? Whether the object in question

y)4 Cf. supra, pp. 687 sqq.

395 Paul. I). 45. 1, 91, 3: ". . . quotiens culpa intcrvenit debitoris, pcrpetuari obligationcm." For further details, sec supra, pp. 786 sq., 791 sq. An enrichment debtor cannot, however, normally have been held responsible for the event preventing him from honouring his obligation in just the same way as a promisor; for it can hardly be expected of him to be aware of his obligation to make restitution (and thus to adjust his behaviour accordingly) to the same extent as this can be expected ot a person who has promised, say, to convey a slave. If he was actually aware of the fact that he received indebitum, he

committed theft (cf. supra, note 99 ). 396 Afr. D. 12. 1. 23.

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was ultimately destroyed or not: in both cases the defendant no longer had the object in his property, but had, instead, received the price; and hence it was the price for which he should be liable, rather than either for the (full) value of the object or, alternatively, for nothing. This is how the Roman lawyers may have argued, for in a famous and muchdebated fragment Ulpian, indeed, appears to have confined the plaintiff's claim to the purchase price (which is specifically stated to have been rather small), although the slave that the defendant had originally received is not reported to have died:

". . . et intcrdum licet aliud pracstemus, inquit, aliud condidmus: ut puta . . .

hominem indebitum [dedij, et hunc sine fraude modico distraxisti, nempc hoc solum refundcre debes, quod ex prctio habes."3''7

"Quod ex pretio habes" here does not mean "what you have left from the price"398 but "what you have received as price",399 and Ulp. D. 12, 6,

26S 12 can therefore not be taken to have determined the content of enrichment condictiones, on a gliding scale, according to the enrichment still extant at the time of litis contestatio.400

5. The regime of the ius commune: all or nothing

Until the time of Justinian the general rule was all or nothing. Predominantly this meant "all": the plaintiff was able to claim the full value of what the defendant had received. The alternative of "nothing" applied only in cases of interitus speciei not attributable to the fault of the defendant. The condictio pretii constituted the only exception from this simple scheme: if the defendant, in good faith, sold the object that he had received, the purchase price took the place of that object as far as the plaintiff's condictio was concerned. Considerably less indulgence was thus afforded to the defendant by the Roman lawyers than by the BGB, and the lawyers of the ius commune by and large accepted this position for a long time.401 More particularly, the distinction between condictiones aimed at the recovery of a species or a quantitas remained firmly entrenched and in the latter case the debtor continued to be held liable, in conformity with D. 12, 6, 7, for tantundem: "Scd quando quantitas solvitur: tune indistincte dicitur quis locupletior in eo quod recipit. Quantitas enim perire non potcst."402 Usually the parallel with mutuum was drawn, and Cuiacius and many subsequent French

W7 Ulp. D. 12, 6, 26, 12.

39K As Peter Birks (Mommsen, Kriiger, Watson, The Digest of Justinian, vol. I (1985)) translates.

i 9 '' Flume, Festschrift Niedermeyer, p. 105.

4Ш Cf., in particular, Flume, Festschrift Niedermeyer, pp. 104 sqq.; cf. also: Niederla'nder, op. cit., note 253, pp. 4 sqq.; Make Diesselhorst, Die Natur der Sache ah aussergesetzliche Rechtsquelle, verfolgtan der Rechtsprechtmg zur Saidolheorie (1968), pp. 36 sqq. Contra: Heinrich Siber, "Retentio propter res donatas", in: Studi in onore di Salvatore Riccobono, vol. Ill (1936), pp. 252, 257; von Lubtow, Co nd ic tio, pp. 20 sqq. and othe rs .

401Flume, Festschrift Niedermeyer. pp. 140 sqq.

402Bart olus, Co m m e n ta ria , ad D . 12, 6, 7 ( Q uod i nde bitum) .

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authors even referred to a quasi-contract of "promutuum" in these cases.403 Lauterbach, in the 17th century, summarized the then prevailing opinion in the following terms:

"Si quantitas indebiti soluta, tantundem in eodem gcnere [petiturj . . . Si vcro species soluta, rcpetitur i li a ipsa . . . Si vcro res in specie restitui non potest, bonae fidei possessor, qui nullam moram adnnsit, non tenetur, nisi in quantum locupletior factus est (i.e. the price that he has actually received] . . . Malae fidei vcro possessor, aut qui moram admisit, verum pretium restituit [i.e. the actual value of the object in question]."4"4

6. The change of opinion in the 19th century

The turnabout came only in the 19th century,405 and in the wake of a variety of tendencies to facilitate enrichment actions. The error requirement of the condictio indebiti was relaxed, Savigny's generalized condictio sine causa gained recognition and the naturalis aequitas was emphasized (possibly still under the influence of the enthusiasm displayed by the natural lawyers for Pomponius' famous declaration) as the true basis on which the law of unjustified enrichment rested. The further one was prepared, however, to take the principle against unjust enrichment, the more anxious one became to protect the reasonable reliance of those who had disposed of what they had received; and such protection appeared to be required, irrespective of whether a species, fungibles or money was involved. If the plaintiff's claim was subject to the precepts of what was fair and equitable, it followed not only that

every unjust benefit must be recoverable, but also that the defendant may be held liable only as far as a benefit had in tact accrued to him.406

"Nemincm cum alterius detrimento fieri locupletiorem": the defendant was not to be enriched at the plaintiff's expense; but where he had lost or spent the money, or given away the fungibles, he could hardly be seen to be "enriched". Thus it came to be regarded not only as manifestly equitable, but as inherent in the very nature of "enrichment" liability, that a duty to make restitution existed only in so far as the recipient was (still) enriched.407 The most influential legal writers of the

403 Cf. supra, p. 837, note 28.

4(14 Collegium theoretico-praaicum. Lib. XII, Tit. VI, XXIX.

405 Flume, Festschrift Niedermeyer, pp. 145 sqq. (who, however, at p. 144, draws attention to the fact that Duarenus had already abandoned the distinction between species and quantitas as the object of the enrichment claim and merely stated "eum a quo condicitur indebitum, eatenus damnari, quaternus sit factus locupletior"); Diesselhorst, op. cit.. note 400, pp. 42 sqq.; Flessner, op. cit., note 341, pp. 5 sqq.; Konig, Bereichenmg, pp. 52 sqq. The provisions of the Prussian General Land Law are still in tune with the traditional opinion; cf. in particular, § 193 I 16 PrALR.

Or, as it is often put, "innocent" receivers of unjustified gain must not be allowed to incur any loss as a result of the enrichment claim; they must not be required to "reach into their own pockets".

407 Cf. Dawson, (1981) 61 Boston University LR 271 sqq., who draws attention to a statement of the imperial Supreme Court (RGZ 118, 185 (187)) according to which the "principle of enrichment that is highest of all is that the duty of the enriched person to surrender . . . must in no event lead to a reduction of his estate by more than the amount of

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