Naslov
Unjustified enrichment: transformations of a concept in European legal traditions

Autori
Held, Henrik-Riko

Vrsta, podvrsta i kategorija rada
Poglavlja u knjigama, znanstveni

Knjiga
European Traditions: integration or disintegration

Urednik/ci
Oosterhuis, Jan Willem ; van Dongen, Emanuel

Izdavač
Wolf Legal Publishers

Grad
Nijmegen

Godina
2012

Raspon stranica
21-34

ISBN
978-90-5850-944-4

Ključne riječi
unjustified enrichment, condictio, actio de in rem verso, European legal tradition, Roman law

Sažetak
The prohibition of unjustified enrichment, a stoic philosophical principle, found its expression in Roman law in a system of diverse condictiones sine causa. Regarding their number and form, these legal remedies assumed their final shape in the classical period of Roman law, in the first two centuries AD. They were considered to be the procedural law remedies, in a sense that every particular condictio was a procedural application to the circumstances at hand. Later on, in the post-classical period, Justinian accepted them in his codification. However, as all the most important practical situations were covered by the classical system of condictiones, in the Corpus iuris civilis individual condictiones were considered to be the descriptions of a definite number of situations in which restitution on the grounds of enrichment without cause was granted. Therefore, they came to be regarded not as a part of the procedural law, but as a part of the substantive law instead. This distinction bears significance when we consider the reception of Roman law of unjustified enrichment in the Middle Ages and later, in the first civil codes in Europe. In some legal systems a general prohibition of unjustified enrichment was accepted, with few examples as to the most common instances in which an unjustified enrichment occurs, reflecting Justinian’s system of condictiones (for example in German law). In others, only parts of the Roman system were accepted (for example in French law). On the contrary, in English law legal remedies for unjustified enrichment did not stem from Roman law at all, although in their final shape they did resemble their continental law counterparts. Interesting development in this legal area is that the Roman law principle of prohibition of unjustified enrichment serves as a possible basis for a future general prohibition of unjust enrichment in England. Condictiones sine causa achieved technical legal perfection in Roman law, and then served as a basis for a number of European legal systems. The principle behind them, prohibition of unjustified enrichment, found its way from the Roman stoic philosophy through the reception of Roman law in the Middle Ages to the contemporary law, all the way influencing their development. Finally, that principle not only serves as a means of establishing national general prohibition of unjustified enrichment, but it also represents the least common denominator of the European legal traditions of fundamentally different origins. This paper addresses these crucial points in the historical development of the unjustified enrichment law ; substantive and procedural character of the remedy, approach to the problem with a general principle or with particular solutions for the most common instances, and finally the extent to which Roman law sources can be of importance in the process of converging of the European law systems.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA