19
enrichment, which is impossible to measure independently of the parties‟
agreement).
A different group of cases appears even more problematic.
These cases
concern contractual agreements where one party has been motivated by some
supervening motive that did not become part of the contractual agreement although
it was known by the other party.
101
The claimant may have donated or sold a house
at favourable conditions to a nephew on the basis of an expectation or hope that the
nephew would marry and move into the house with his family.
102
Or one party paid
damages on the basis of a disappointed expectation that the recipient would abstain
from filing a criminal case against his wife.
103
According to the principles of
contract law, such mistakes regarding the motive of
one contracting partner are
normally immaterial – at least as long as they have not been caused by the other
side or amount to a relevant change of circumstances,
104
or can be interpreted as an
(implied) pre-condition of the contractual agreement.
105
In fact, the law does not
normally allow a young man to reclaim his gifts to a maiden rejecting his advances.
Here, it is unnecessary to discuss the relevant contract law policies in more detail.
The more important
point is that applying the
condictio ob rem
in such a case
typically amounts to nullifying these policies. Either there has been an agreement
between the parties with regard to the claimant‟s motive:
then the question of
breach of contract arises. Or there has been no such agreement: then the rules on
mistake, fraud, or changed circumstances apply.
106
c) Some results
All in all, it must be maintained that all these cases should be decided on the basis
of contract law principles. Even if many legal systems treat them within the law of
unjustified enrichment, they are ultimately contractual in nature.
107
Discussing such
cases from the non-contractual perspective of unjustified enrichment endangers the
integrity of contract law.
108
Hence, large parts of the modern law of enrichment
101
See from Germany RGZ 132, 238, 242 (30 March 1931); BGH (15 March 1990) [1990]
Wertpapier-Mitteilungen (WM) 1583, 1585: purchase of goods at a price
exceeding their market
value in expectation of being rewarded for this concession with a valuable contract for services.
102
BGE 82 II, 430 ff (9 October 1956). The Austrian OGH has also allowed a claim for the
maintenance that one partner provided for the other in expectation of a future marriage: OGH SZ 40,
44 ff, no 15 (2 February 1967); OGH SZ 42, 286 ff no 94 (23 June 1969).
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