The Principle Against Unjustified Enrichment

A celebrated abstraction is the maxim from the Digest that no one should be
enriched at another’s expense.1The late scholastics and then the northern natural
lawyers thought that this principle could explain the law of unust enrichment.
Since the 19th century, German jurists, in particular, have been trying to bring it
down to earth. Windscheid and his contemporaries agreed that this principle is too
broad, a ‘false abstraction’, ‘untrue at this level of generality’. The truth was
suggested by another Roman maxim which said a person was liable for ‘a thing
which he has without a just basis (justa causa)’. According to Windscheid, a
person enriched at another’s expense ‘has the duty to justify (herauszugeberi) to
the disadvantaged party, why he has become richer’.
That conclusion is expressed by the general principle of § 812(1) of the
German Civil Code: ‘one who has received something through another’s
performance or at his expense in some other way without legal basis (phne
rechtlichen Grund) is obligated to give it back’. Yet 20th century German jurists
have found that statement too broad as well. In 1934, Walter Wilburg claimed that
it was impossible to formulate any general rule as to when enrichment is
unjustified. Ernst von Caemmerer agreed. It is not true that an enrichment is
unjustified when the person enriched has no contractual or statutory claim to be. A
person might lose his rights to another by prescription. Or he might renounce a
right which is consequently acquired by someone else. Or he might open a tourist
hotel in a hitherto unknown village or build a dam, thereby enhancing the value of
neighboring properties. Other jurists have pointed out that ‘enrichment may be due
to the display of particular skills in (lawful) competitition’. Von Caemmerer
concluded that, in many cases, third parties are advantaged without a contractual or
statutory claim to be. But they are not unjustifiably enriched, and there is no action
in unjustified enrichment against them.’
According to von Caemmerer, one could not formulate a general principle
but only identify types of cases in which the plaintiff has a cause of action.
Building on the work of Wilburg, and without intending to be exhaustive, he
described four major ones: (1) the plaintiff rendered the defendant a performance
{Leistung) which was without a legal basis {Grund) in the sense that the purpose
the plaintiff was pursuing was not achieved; (2) the defendant made an
encroachment {Eingriff) on the plaintiffs property; (3) the plaintiff incurred
expenses {Impensen, Aufwendungen, today, commonly, Verwendungeri)
improving the defendant’s property; and (4) the plaintiff paid another’s debt and
now claims recourse {Ruckgriff) against the defendant. Today, this typology is
widely accepted. It is found in most German textbooks and commentaries.
Whether the plaintiff should recover in the fourth case—in which he sues for
the defendant for having paid another’s debt—depends on whether the legal system
in question regards the plaintiff’s payment as absolving the defendant from his
own obligation to pay the debt. That is a question we do not need to get into here.
In the other three types of cases, however, Anglo-American and French law also
give relief, and when they do not, one can explain their reluctance by doubts about
how much the plaintiff’s expenses were worth to the defendant.
Nevertheless, French and Anglo-American law have been more concerned
with particular cases than with abstractions. Only two particular cases are
described in the French Civil Code: payment of sums not due (art. 1376) and
handling another’s affairs (art. 1372). French law has been built by analogy to
these. Jurists have occasionally mentioned the principle of unjust enrichment, but
they have either dismissed it as a meaningless generalization or espoused it without
explaining how it can be tied to the cases in which French law gives relief.
For most of its history, Anglo-American law has been tied to particular
cases. It has recognized various restitutionary remedies, each with its own rules,
but ‘the courts gave no sign of any larger purpose or plan, and any suggestion that
the continuities they were creating added up to a “law” of restitution would have
been met for decades with disbelief’. In the United States, acknowledgment that
there was such a body of law came earlier than in England. In 1937, the American
Law Institute published a Restatement of Restitution although John Dawson has
suggested that it merely ‘patched the parts together and gave the subject a name’.
The first comprehensive American treatise was only published by George Palmer
in 1978.12 In that year, Lord Diplock insisted emphatically that ‘there is no
general doctrine of unjust enrichment recognized in English law’; there were
merely ‘specific remedies in particular cases’. For most of its history, Anglo-
American law has been tied to particular cases. It has recognized various
restitutionary remedies, each with its own rules, but ‘the courts gave no sign of any
larger purpose or plan, and any suggestion that the continuities they were creating
added up to a “law” of restitution would have been met for decades with disbelief’.
In the United States, acknowledgment that there was such a body of law came
earlier than in England. In 1937, the American Law Institute published a
Restatement of Restitution although John Dawson has suggested that it merely
‘patched the parts together and gave the subject a name’.11 The first
comprehensive American treatise was only published by George Palmer in 1978.
In that year, Lord Diplock insisted emphatically that ‘there is no general doctrine
of unjust enrichment recognized in English law’; there were merely ‘specific
remedies in particular cases’.
Gordley J. Foundations of Private Law: Property, Tort, Contract, Unjust
Enrichment. Oxford University Press, 2006, pp. 419-421