20
should be reintegrated into the law of contracts as they are based on contract law
principles and policies. The proper place for contractual remedies – including those
unwinding failed or void contracts – is in contract law, rather than in the law of
non-contractual obligations.
It follows that most modern descendants of the Roman
condictiones
, such as
the French
répétition de l’indu
or the German
Leistungskondiktionen
, should
altogether be excluded from the field of non-contractual obligations. Indeed, many
legal systems draw a line, within the law of unjustified enrichment, between cases
where the enrichment is based on a failure of
contract or on a failure of
performance, and other cases of enrichment.
109
English and German authors have
recently argued, convincingly, that even such „core cases‟ of unjustified
enrichment
110
as failure of performance should be explained on the basis of contract
law principles,
111
or that they should be placed into a general part of the law of
obligations,
where they would be treated, by analogy to failure of contract, in the
context of (failing) performance.
112
It is this divide within the law of unjustified
enrichment that separates contractual obligations, and possibly a general part of the
law of obligations, from non-contractual obligations
.
True,
it may be artificial to
reconstruct every payment as a contract;
113
it is difficult, therefore, to integrate
claims that are based on a mistaken payment on a non-existing claim for delictual
damages into contract law; and not everybody will appreciate a
further conceptual
expansion of the general part of obligations. However, these „core cases‟ of
unjustified enrichment are exceptional in real life; it would be unsatisfactory to
make such exceptions the basis of a fundamental legal category. More importantly,
in this context the concept of „unjustified enrichment‟ is too abstract to adequately
address the policies that are decisive for the reversal of failed performance. Rather
than making such claims the basis of a distinctive legal category, lawyers should
therefore ask where they best „fit‟ within their legal system.
114
This leads to a second, perhaps even more fundamental point: it is doubtful,
after all, whether unjustified enrichment should really be treated as a category
comprising all claims that are based on, and limited by, the defendant‟s enrichment.
Rather, the defendant‟s enrichment should be seen,
on the one hand, as a measure of
liability that is applicable both in contract law and in the field of non-contractual
obligations. In this respect it must be equated with the obligation to pay full
compensation, such obligations having a place both in contract law and in the field
of non-contractual obligations. On the other hand, the defendant‟s enrichment may
109
Zimmermann
(1995) 15 OJLS 404 ff, 417 ff;
Gordley
(fn 11) 431. In France, the distinction is
based
on the fact that the
Code civil
only contains provisions on the Roman
condictio indebiti
(
répétition de l’indu
, Arts 1376–1381 French CC) and that it was for the courts to develop a general
enrichment action, besides this
répétition de l’indu
; see above fn 50. In Germany, a similar
distinction, although apparently prefigured by the wording of § 812 (1) BGB, was developed only in
the 20th century, by academic writers:
W Wilburg
, Die Lehre
von der ungerechtfertigten
Bereicherung (1934) 5 ff, 27 ff;
von Caemmerer
(fn 57) 333 ff;
Larenz/Canaris
(fn 13) 169 ff.
110
P Birks
, Unjust Enrichment (2003) 3 f.
111
Hedley
(fn 74) 16 ff.
112
Wendehorst
, No Headaches (fn 80) 129 f;
ead
(fn 92) 257 f.
113
But see
Hedley
(fn 74) 16, comparing normal payments with settlements.
114
Such an approach is supported by Art 10 (1) and 11 (1) of the Rome II Regulation (fn 6),
according to which such cases of mistaken payment shall be governed by the law applying to the
(contractual or delictual) relationship existing between the parties.
21
also be a reason for imposing liability. In this respect, the defendant‟s enrichment
functionally corresponds to the defendant‟s fault, rather than to the claimant‟s
damage: in the same way in which abstract negligence not causing damage to
another person is no reason for imposing an obligation, the enrichment of one
person should not be seen as a legal problem triggering liability unless it
corresponds to another person‟s loss.
115
In the same way in which negligence is
an argument justifying the
imposition of liability both in contract and tort law, all those considerations may be
relevant both in a contractual context (eg, in the case of contracts concluded with
minors) and in the field of non-contractual obligations. It follows that the existence
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