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The Doctrine of Unjustified Enrichment: II. Unjustified Enrichment in French law 5
Published online by Cambridge University Press: 16 January 2009
Extract
The law is not called upon to intervene merely because the assets of one person may happen to be increased as the result of a corresponding diminution in the assets of another person. But it is always possible, in particular circumstances, that the enrichment of one person owing to the impoverishment of another is manifestly unjust, and this would seem to give rise to an obligation to make restitution which is based on principles of natural justice. The Civil Law has a moral basis and is consequently called upon to provide the necessary means to enable justice to be done in such cases.
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References
6 D. iii, 5, De negotiis gestis, 6, 5.
7 D. v, 3, De hereditatig petitione, 38.
8 D. 1, 17, De diversis regulis iuris antiqui, 206.
9 Equité is a term of French law which cannot be translated into English, though ‘natural justice’ is an expression which comes very near it. It must not be confused with the English term ‘Equity.’
10 Pothier, Oeuvres (ed. Bugnet), vol. 5, Du quasi-contrat negotiorum gestorum, No. 182 (see also eod. tit. Nos. 189, 192); and Traité du quasi-contrat appelé promutuum, Nos. 134, 140, 179.
11 Where a minor has borrowed money without his guardian's authorization, he will be ordered to refund it, if there is evidence that the sum was used to satisfy creditor who was entitled to sue the minor: Civ. February 23, 1891 (D. P. 1892, 29). See also, in the case of a married woman : Req. April 26, 1900 (D. P. 1900, 1, 455); Req. January 2, 1901 (D. P. 1901, 1, 16). Colin et Capitant, vol. i, 562.
12 For instance, where a person who is in possession of a house by virtue of a contract of sale which is avoided: Req. December 22, 1873 (D. P. 1874, 1, 241); Besançon, March 17, 1897. (D. P. 1898, 2, 211); or where a person possesses land, bequeathed to him by will, and a new will is discovered, the effect of which is to nullify the first one; or where a person has been given a chattel, and this donation becomes void by a child afterwards being born to the donor.
13 Dijon, February 7, 1928 (D. P. 1928, 2, 169, note Voirin).
14 Civ. July 6, 1927 (S. 1928, 1, 19).
15 The principle is sometimes mentioned in the decisions of the Courts of this time (see Grenoble, August 12, 1836; S. 1837, 2, 330), but only as a moral precept, or in order to fix the basis on which a special provision of the Code relies; it is never invoked as being an independent and compulsory principle of the law.
16 There is perhaps an exception in the case of Req. July 11, 1889 (S. 1890, 1, 97, note Labbé); the fact that the plaintiff had proved very negligent will, however, probably explain why he was not given any remedy.
17 This reservation must be made on account of Art. 599, sect. 2, Code Civil, which provides that a usufructuary cannot, at the end of the usufruct, claim an indemnity by reason of the improvements he purports to have made, even if such improvements have increased the value of the thing. See for the unjust consequences of this article, Req. November 4, 1885 (S. 1886, 1, 113; D. P. 1886, 1, 361). A contract made between competent parties cannot be avoided, as a rule, on account of the unreasonable benefit (lésion) which it confers on one of the parties (Art. 1118).
18 This ceases to be completely true after 1850, as appears from a decision of the Court of Paris, April 26, 1852 (D. P. 1853, 2, 11: a woman, through her ignorance of the law, had not recognized the illegitimate child with whom she had always lived; she had consequently no right of any sort in his succession; the Court, however, gave her an indemnity against the assets of this succession for the expenses she had incurred in the upbringing of her child. See also Req. August 8, 1871 (D. P. 1871, 1, 240). Neither decision invokes any article of-the Code, nor does either assert the principle that one may not, without justification, take advantage of another's detriment.
19 Demolombe, vol. xxxi, No. 49; Laurent, vol. xx, No. 337.
20 A child was sent by his parents, for his education, to a clergyman. The parents became insolvent. Held, that the clergyman could resort to Art. 1376 and sue the child himself for the whole amount of the expenses incurred in bis education: Pau, January 19, 1852 (D. P. 1852, 2, 198).
21 A son, who has come of age, goes on working for his father and living with him. Held, that there is an implied contract of employment, and that the son can sue his father for a reasonable salary: Dijon, March 26, 1874 (D. P. 1876, 2, 203).
22 A man lives with his sister. Held, that he impliedly guarantees the payment of any debt contracted by her in their common interest: Req. February 4, 1901 (S. 1902, 1, 229).
23 Aubry et Eau, vol. ix, é, notes in S. 1890, 1, 97 and 1893, 1, 281. Criticism of the former decisions was principally inspired by technical reasons, and the desire to give back to the gestion d'affaire its proper character.
24 Req. June 15, 1892 (S. 1893, 1, 281, note Labbé; D. P. 1892, 1, 596).
25 Req. December 11, 1928 (D. Hebd. 1929, 18). As a matter of fact plaintiffs etill resort, in the majority of cases, both to the principles of the gestion d'affaire (Art. 1376) and to the rule concerning unjust benefit. The reason is that they can get more by the operation of the former than by the effect of the latter.
26 This name for the action is unanimously criticized by French lawyers, but unanimously adopted by them. The action has nothing in common but the name with the actio de in rent verso of the Roman civil law.
27 In theory it still remains open to the Courts to challenge it, as it is only case-made law, and no precedent whatever is binding in France for a judge. But no defendant raises the point or questions the existence of the rule nowadays.
28 An identical rule has been laid down in Belgium, in Luxemburg, and before 1900 in the parts of Germany where the French Code Civil was in force (Oberlandesgericht Darmstadt, April 20, 1895; D. P. 1897, 2, 332). The principle of unjustified enrichment is, on the contrary, still a matter of controversy in Italy, where the provisions of the law are nearly the same as in France: see de Ruggiero (Istituzioni di diritto civile, 5th ed. vol. ii, p. 483 ss.); Scuto (L'ingiustificato arrichimento, in Annali dell’ Università di Perugia, viii, p. 260 ss.); Mastroini (L'ingiustificato africhimento, in Rivista del Diritto Commerciale, 1926, 1, 632).
29 See Art. 73 of the draft Franco-Italian revised Code of Obligations: ‘Whosoever acquires a profit, without justification, at the expense of some other person, is bound to compensate him, in proportion to the damage which he has sustained.’
30 See Code Civil of Japan (Art. 703), of Soviet Russia (Arts. 399 to 402), of Tunisia (Art. 71), of Morocco (Art. 66).
31 Enneccerus, Kipp and Wolff, Lehrbüch des bürgerlichen Rechts, vol. ii, § § 217 to 225. Gerota, La théorie de l'enrichissement sans cause dans le Code civil allemand (Thèse Paris, 1925).
32 Von Tühr, Allgemeiner Teil des Schweizerischen Obligationenrechts, vol. ii, p. 369 ss. Bussy, Etude sur les conditions générales de l'enrichissement illégitime en droit suisse (Thèse Lausanne, 1922). Turkey has the same law of obligations as Switzerland.
33 The doctrine of unjustified enrichment is also admitted in French ‘administrative law,’ i.e. in the relations between private persons and public bodies (e.g. State, provinces, parishes). See on this subject Mestre, Gestion d'affaire et enrichissement sans cause en droit administratif (Recueil de législation de Toulouse, 1913, p. 177); Roques, De la notion d"enrichissement sans cause en droit administratif (Thèse Montpellier, 1930).
34 There is no unjustified enrichment, in the technical senee of this expression, and no actio de in rem verso is given, in France, where a special provision of the law (Arts. 1312, 1375, 1376, etc.) applies. In Germany and Switzerland, on the contrary, the doctrine of unjustified enrichment is of course regarded in a much wider sense, and contemplates all these particular cases.
35 Planiol, Classification des sources des obligations (Revue critique de législation, 1904, 224).
36 Ripert et Teisseire, Essai d'une théorie de l'enrichissement sans cause (Revue trimestrielle de droit civil, 1904, 727).
37 I.e. what an English lawyer would call equality of consideration between the parties.
38 Maury, Essai sur le râle de la notion d'équivalence en droit civil français (Thèse Toulouse, 1920).
39 Rouast, L'enrichissement sans cause et la jurisprudence civile (Revue trimestrielle de droit civil, 1922, 35).
40 See Ripert, La règle morale dans Jet obligations civiles (Nos. 133 as.).
41 Civ. May 12, 1914 (S. 1918–19, 1, 41, note Naquet); Civ. March 2, 1915 (D. P. 1920, 1, 102). The new ‘formule’ reproduces the actual words of Aubry et Ran (vol. ix, § 578).
42 In order to put out a fire in a house, damage is done to a neighbour's house. The neighbour is entitled to resort to the actio de in rem verso: Tribunal de paix Vanves, July 26, 1927. (D. Hebd. 1927, 535).
43 Certain goods, which her husband is under a duty to supply to her according to Art. 214 of the Code Civil, have been ordered by a married woman, and delivered to her; the seller of the goods may bring an actio de in rem verso against the husband: Paris, June 17, 1899 (D. P. 1900, 2, 105). The doctrine of unjustified enrichment is in euch cases usually excluded in practice, as the Courts hold that the wife contracts as an implied agent of her husband, for all the necessary household expenses. See also Dijon, February 7, 1928 (mentioned above), where a woman had been working gratuitously in a shop and the owner of the shop had been saved the cost of the salary of a shop assistant.
44 Pau, January 19, 1852 (D. P. 1852, 2, 1981, mentioned above. The question seems never to have been decided in German law.
45 Colmar, July 15. 1930 (Revue juridique d'Alsace et de Lorraine, 1931, 298).
46 See the case, mentioned above, in Civ. July 6, 1927 (S. 1928, 1, 19): copyright fees normally payable to the heirs of Donizetti.
47 Dijon, February 7, 1928 (D. P. 1928, 2, 169, noto Voirin).
48 Poitiers, December 2, 1907 (D. P. 1908, 2, 332).
49 Req. August 8, 1871 (D. P. 1871. 1, 240): Paris, December 1, 1910 (Gazette des Tribunaux, January 29. 1911): Tribunal depaix Troves. April 10,1929 (Journal des Juges de paix, 1929, 279). What constitutes the unjustified enrichment of the defendant in these rases does not appear very clearly.
50 Req. June 22. 1927 (S. 1027, 1, 338). See also Civ. October 18. 1904 (S. 1907, 1, 465, note Wahl). Cp. Grenoble, August 12, 1836 (S. 1837, 2, 330).
51 Req. December 11, 1928 (D. Hebd. 1929, 18).
52 Art. 682 provides that the owner of land, which forms an enclave and is not provided with a sufficient exit to the highway, may claim a right to pass through the land of his neighbour, provided he pays an indemnity corresponding to the damage he thereby inflicts.
53 Grenoble, June 25, 1924 (D. P. 1926, 2, 41, note Rouast).
54 Contra see Bartin, on Aubry et Bau (vol. ix, § 578, note 9 decies); Civ. July 31, 1896 (D. P. 1895, 1, 391). Sums were lent to allow the construction of arailway by an independent contractor. This contractor having become insolvent, the lender sued, by an actip de in rem verso, the town of Arles, which had derived a definite profit from the construction of the railway. The action failed, the Court refusing to take an indirect enrichment into account.
55 Sic Bouast (loc. cit.); Req. June 15, 1892 (S. 1893, 1, 281, note Labbé; D. P. 1892, 1,596); Req. December 20, 1910 (D. P. 1911, 1, 377, note Planiol); Douai, May 26, 1930 (Recueil des arrets de la Cour d'appel de Douai, 1931, 168). The facts of these decisions are related hereafter. See also the decisions, already quoted, in the case of a broker, who has enabled a contract to come into existence.
56 The traditional principle, quoted by Pothier, is: ‘nul ne doit s'enrichir injustement aux dépene d'autrui.’
57 This rule, the existence of which is not absolutely clear, would explain the decision of Req. July 11, 1889 (S. 1890, 1, 97, note Labbé). See also note Wahl, on Civ. October 18, 1904 (S. 1907, 1, 465). An idea of the same kind explains the provisions of the German and Swiss laws which strictly limit the time within which the action can be brought.
58 Grenoble, June 25, 1921 (D. P. 1026. 2. 41, note Ronast).
59 Req. July 21, 1903 S. 1904, 1, 21: D. P. 1904, 1, ISD
60 Req. June 15, 1892 (S. 1893, 1, 281, note Labbé; D. P. 1892, 1, 596).
61 Req. December 20, 1910 (D. P. 1911, 1, 377, note Planiol).
62 Lyons, January 11, 1906 (S. 1907, 1, 466; D. P. 1906, 2, 132).
63 Req. August 8, 1871 (D. P. 1871, 1, 240); Parie, December 1, 1910 (Gazette des Tribunaux, January 29, 1911); Tribunal de paix Troyes, April 10, 1929 (Journal des Juges de paix, 1929, 279).
64 In the case first cited the price of the manure had been placed to the credit of the landlord, in the final settlement between him and the farmer. In the second case it had been held by the Court of Appeal that the mother had acted in the interest of her children and with their assent, so that Art. 1376 had consequently to be applied. The decision of the Court of Cassation is very brief, and in spite of appearances may be founded on the principle of gestion d'affaire, especially as it considers the children as liable for the whole sum claimed by the contractor and not only for the increase of value given by the work to the house.
65 The Court of Lyons, January 11, 1906, refers to the thesis here criticized only in the recitals of its judgment, but does not apply it in its decision. The decisions concerning the broker might have been better founded on a contract implied by conduct.
66 Req. February 12, 1933 (D. P. 1923, 1, 64); Civ. December 14, 1931 (D. Hebd. 1932, 98); Lyons, November 5, 1930 (Moniteur judiciaire de Lyon, September 11, 1931). Adde Civ. March 2, 1915 (D. P. 1920, 1, 102); Req. November 22, 1908 (D. P. 1912, 1, 217, note Ripert).
67 Douai, May 26, 1930 (Recueil deg arrêts de la Cour de Douai, 1931, 168).
68 Civ. October 18, 1898 (D. P. 1899, 1, 105).
69 The opposite rule would, however, probably be adopted if the contract out of which the defendant derives his enrichment was a gratuitous contract (e.g. where goods which have not been paid for have been given to the defendant at a time when the donor was perfectly solvent, thus excluding the application of Art. 1167 of the Code Civil). No precedent seems to exist on this question, which is a matter of controversy in Swiss law. But though it would have a ‘cause’ in the sense of Art. 1131 of the Code Civil, the enrichment would most probably be considered as unjustified and have to be restored.
70 Paris, July 27, 1928 (S. 1930, 2, 73, note Chavegrin). Enrichment of the owner was held quite correctly by the Court not to arise either out of the cost of the works done or the increase of value given to the house, but only out of the increase of value given by the work to the right of ownership.
71 Tribunal Luxemburg, February 6, 1931 (S. 1932, 4, 23).
72 Civ. May 12, 1914 (S. 1918–19, 1, 41, note Naquet).
73 Civ. February 11, 1923 (D. P. 1924, 1, 129, note Rouast).
74 Civ. July 18, 1910 (S. 1923, 1, 153).
75 See also the case of the seller of the manure, and the other cases mentioned in the same place.
76 The origin of that principle is to be found in the formula of Aubry et Rau: but it seems to be doubtful whether these learned writers meant by their words everything which has subsequently been attributed to them.
77 Colin et Capitant, vol. ii, p. 420 (5th ed.).
78 See another illustration of this rule in Civ. July 3. 1928 (S. 1928, 1, 356) : an actio de in rem verso cannot succeed, when it would indirectly enforce in France a fiscal law of a foreign country. Cp. for the German law, two decisions of the Beichsgericht, March 5 and July 9, 1932 (R. G. Z. 137, 206).
79 Civ. July 6, 1927 (S. 1928, 1, 19), mentioned above.
80 Poitiers, December 2, 1907 (D. P. 1908, 2, 232).
81 Req. February 4, 1901 (S. 1902, 1, 229). It is true that the decision not only resorts to the doctrine of unjustified enrichment, but is also based on the presumption of an implied guarantee given by the defendant for the purchases of his sister.
82 The same rule obtains in Germany (Enneccerus, vol. ii, § 224) and in Switzerland (von Tühr, vol. ii, § 53). Planiol-Bipert (vol. vii, p. 50) goes so far as to suggest that the assessment should be made in certain cases as at the date of judgment.
83 Lyons, January 11, 1906 (S. 1907, 1, 466; D. P. 1906, 2, 132).