2
comprehensive exposition of the principles of non-contractual obligations; the same
is true for the national legal systems. Indeed, the fact that there is now a Journal of
European Tort Law complementing journals like the European Review of Contract
Law or the Restitution Law Journal confirms this observation: there is no
comprehensive notion of non-contractual obligations in Europe. True, there have
recently been published books on
Gesetzliche Schuldverhältnisse
in Germany,
especially by Dieter Medicus, and by Günter Christian Schwarz. But these are
textbooks written for students. They owe their existence not to their authors‟
convictions that there is a common principled basis of non-contractual obligations,
but to the fact that at German universities the traditional
course on specific
obligations (
Schuldrecht Besonderer Teil
) is nowadays split apart into two courses,
one on contracts and the other on the rest.
5
Similarly, the Rome II Regulation „on
the law applicable to non-contractual obligations‟
6
uses this notion as an umbrella-
concept for obligations that are not contractual in nature; hence it does not define
this concept, but rather refers to „tort/delict, unjust enrichment,
negotiorum gestio
or
culpa in contrahendo
‟.
7
However, „non-contractual obligations‟ may also be understood in a more
meaningful sense. Such a concept presupposes by implication
first that the law of
non-contractual obligations can plausibly be separated from contract law, and
second that the law of non-contractual obligations can be explained as an internally
coherent part of the law of obligations. In other words: non-contractual obligations
may be presumed to be fundamentally different from contractual obligations on the
one hand, and to be based, at least in part, on a coherent set of overarching
principles on the other. Yet many lawyers might,
at first sight, regard both
propositions as highly counter-intuitive. This is especially true for the second idea
that there are overarching principles integrating non-contractual obligations into a
normatively coherent part of private law. Such an idea is not often heard in
European private law these days:
8
unjustified enrichment and tort law are usually
treated as independent,
or even opposed, types of obligations that are based on
different principles, namely the maxim that no one should profit at another‟s
expense,
9
on the one hand, and the idea of personal responsibility,
10
on the other.
11
edition (1996);
F Ranieri
, Europäisches Obligationenrecht (3rd edn 2009).
5
Thus,
Dieter Medicus
explains
gesetzliche Schuldverhältnisse
as obligations arising from law (as if
contractual obligations, including remedies
for breach of contract, did not arise from law):
Gesetzliche Schuldverhältnisse (5th edn 2007) 1, 3, while
Günter C Schwarz
explains this class of
obligations as being not based – at least indirectly – on a party‟s free will: Gesetzliche
Schuldverhältnisse (2003) 1.
6
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on
the law applicable to non-contractual obligations (Rome II) Official Journal (OJ) L 199, 31.7.2007,
40–49.
7
Art 2 (1) Rome II Regulation (fn 6); correspondingly, chapter II covers torts/delicts and chapter III
„unjust enrichment,
negotiorum gestio and culpa in contrahendo
‟.
8
But see
H Koziol
, Grundfragen des Schadenersatzrechts (2010) 34 ff;
id
, Gedanken zum
privatrechtlichen System des Rechtsgüterschutzes, in: Festschrift für Claus-Wilhelm Canaris,
vol I
(2007) 631, 651 ff.
9
Pomponius
, D 50, 17, 206 and D 12, 6, 14: „… aequum est neminem cum alterius detrimento (et
iniuria (D 50, 17, 206)) fieri locupletiorem‟; § 812 (1) 1 Bürgerliches Gesetzbuch (BGB, German
Civil Code): „A person who obtains something … at the expense of another person without a legal
ground is under a duty to make restitution to him‟.
10
See
T Honoré
, Responsibility and Luck (1988) 104 Law Quarterly Review (LQR) 530 ff; see also
3
Clearly, both of these latter maxims are plausible, even if difficult to
translate into workable legal rules. Yet, they may be intellectually connected by an
even more fundamental common, though perhaps forgotten, principle. Indeed, it has
been observed that enrichment liability based on encroachment, ie enrichment based
on the infringement of another person‟s
legally protected interests,
12
is closely
related to the law of delict.
13
In most European legal systems, the violation of a
property right gives rise not only to a claim for damages against the person who was
responsible for the damaging event, but also to a restitutionary
claim against a
person who has been enriched by such a violation. This is true not only for real
property, but also for more immaterial property interests such as intellectual
property and comparable interests in one‟s personality. Hence, non-contractual
obligations should be conceived of as obligations that are not based on voluntary
transactions but rather protect citizens against unwanted infringements of their
legally protected
status quo:
the body‟s and personality‟s integrity, property rights
and other comparable interests.
14
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