A look at European restitution models: between divergences, affinities and contaminations.


Autor: Antonio Albanese, Professore Associato, Alma Mater Studiorum Università di Bologna

In common law systems, the separation between enrichments due to the initiative of the impoverished person (“from or by the act of the plaintiff”) and enrichments obtained as a result of the same activity of the enriched person (“by his own wrongful conduct”) is usual, according to a bipartition already implicit in the formulation of «historical» codes such as the Prussian one (“Allgemeines Landrecht”, par. 13) and the Austrian one (§ 1041 ABGB).

This distinction constitutes an axis around which evaluable solutions can converge in order to standardize the institution of restitution on a European basis. In Italy, given the inclusion – of mainly descriptive value – of the payment of the undue amount in the category that common lawyers define as enrichments from or by the act of the plaintiff, the main difficulty is given by the circumstance that, in the common law, restitution is always by equivalent, regardless of the circumstance that the undue performance has as its object a “facere” or a “dar”e. In Italy (art. 2033 ff. of the Civil Code), on the contrary, when the performance has as its object a dare, the restitution is in kind. The Italian legal system provides that the condictio applies to any kind of giving: not only money, but any good. On the other hand, it is debated whether it also operates for obligations of “facere”: the traditional interpretation, in fact, limits the operational scope of the discipline dictated on the subject of undue payment only to obligations of dare, and instead reserves the action of enrichment (art. 2041 Civil Code) to the one who has made without cause a performance of doing or not doing. Following this solution, however, the “solvens” who performs an undue performance of giving would find himself on a privileged level with respect to the “solvens” who has performed an undue performance of doing or not doing: only the latter will obtain relief “within the limits of enrichment” achieved by the “accipiens”, while the protection of the former is not subordinated to the verification of the effective existence of an enrichment, nor of its quantification nor, again, of its persistence in the hands of the “accipiens” at the moment of the request. For this reason, the prevailing jurisprudence and part of the doctrine admit a broader interpretation, suitable for subjecting any type of undue performance to the discipline of undue payment. This trend reversal deserves appreciation, since it ensures “solvens” uniform protection for all cases of non-due performance.

The institution of the undue debt, in Italian law, on the one hand boasts influences on the French system and, as surprising as this may be, on the German system; on the other, it is in turn affected by the contamination of Germanic doctrinal studies. Two examples bear witness to this.

As for the first aspect, some of the most important profiles in the field of recovery action in Italian law, discussed since 1865, seem to have found a more convinced solution over the last few decades, marking an application evolution that is in some respects at the forefront of the scope of civil law. Among these, the one concerning the irrelevance of the error in the regulation of objective undue payments is fundamental. The civil code of 1865 contemplated the requirement of the “solvens” error exclusively with regard to the subjective payment “ex latere solventis” (art. 1146). Nonetheless, it was considered by most to be an essential element of debt in general, both objectively and subjectively. The art. 1377 of the civil code establishes that «anyone who mistakenly believes himself a debtor pays a debt has the right to repayment». It is up to the one who paid to prove the error. For the art. 1895 of the Spanish civil code, “cuando se recibe alguna cosa que non habìa derecho a cobrar, y que por error ha sido indebidamente entregada, surge la obligaciòn de restituirla”. The error is therefore one of the prerequisites for repetition; although there have been attempts to differentiate the error of fact from the error of law, the Spanish jurisprudence, relying on the letter of the art. 1895, makes no distinction, nor does it require the excusability of the error. The Spanish code regulates the proof of error with a provision of a general nature: for the art. 1900 “la prueba del pago incumbe al que pretende haberlo hecho. También corre a su cargo la del error con que lo realizò, a menos que el demandado nege haber recibido la cosa que se le reclame. En este caso, justificada por el demandante la entrega, queda relevado de toda otra prueba. Esto no limita el derecho del demandado para acreditar que le era debido lo que se supone que recibiò”.

Under the current Italian code, the irrelevance of the error is an acquired result of the modern elaboration of the institute, which refers to the text of the articles 2033 and 2036 of the Italian Civil Code, and the traditional distinction between “indebitum ex re” and “indebitum ex personis.” In doing so, the Italian code detached itself from the German and French traditions, where proof of the erroneous conviction of the “solvens” to make a payment due is an essential prerequisite for acting in repetition. In the two systems mentioned, in fact, if the “solven”s is aware of the non-existence of the debt and yet satisfies it, he cannot claim any repetition: the BGB expressly provides (§ 814) for the non-repeatability of the conscious payment of the undue payment (cf. VON CAEMMERER, Grundeprobleme des Bereicherungsrecht, in Gesammelte Schriften, I, Tübingen, 1968, p. 377), while in France it is the solution traditionally prevailing among interpreters. The Swiss (art. 63, first paragraph, OR) and Austrian (§ 1431-1432 ABGB) systems arrive at similar solutions (on which see, respectively, SIEGWART, Allgemeiner Teil des Schweizerischen Obligationsrechts, I, Zürich, 1942, p. 407 ff. and EHRENZWEIG, System des Österreichischen allgemeinen Privatrechts, II, 1. Das Recht der Schuldverhältnisse, Wien, 1928, p. 734 ff.), The solution accepted in those countries is perplexing, because it essentially allows, implicitly, to consider a payment valid and effective even in the absence of a debt. Faced with this difficulty, German doctrine often refers to the principle of venire contra factum proprium (Cf. LARENZ, Lehrbuch des Schuldrechts, II, München, 1977, p. 491), which allows it to consider “solvens” as undeserving of protection. Furthermore, both the Germans and the French tend to equate the conscious payment of the undue amount to a donation, or to a different act with a cause unknown to the law. But the statement according to which the subject who makes a payment, despite knowing that the debt does not exist, makes a donation, is in many cases equivalent to a fictional construct. To give some examples: the presence of the “causa donandi” cannot be found in the payment made for the sole purpose of temporarily escaping an unwanted process, or blocking a bankruptcy procedure; or when you are forced to pay, as in the case when you are intimidated by threats from others or in the case of a provisionally enforceable sentence or when you pay for the sole purpose of avoiding forced execution. Furthermore, even if one wishes to assume the presence of an “animus donandi”, such a result cannot lead to satisfactory solutions in the Italian system, where the absence of the prescribed form entails the nullity of the donation (while the “donazione manuale” ex art. 783 of the civil code and the validation by execution ex art. 799 of the civil code have a limited application margin). On the other hand, this objection cannot be raised to the interpreters of the BGB, which, in paragraph 2 of § 518, sanctions the principle of the validation of the invalid donation due to a lack of form, with the consequence that there is no contradiction with the rule established in § 814 BGB.

If the payment made with the intention of resolving was itself eligible for the transfer, then the error could play an essential role in the removal of the transfer itself; but in Italy delivery is not normally sufficient to transfer ownership in the absence of an underlying justification. Therefore, the choice made by the Italian legislator is to be appreciated, and credit must be given to the Court of Cassation for having developed a line of modern thought, which takes account of the variegated and complex framework of hypotheses emerging from experience. On the other hand, even abroad embarrassment has begun to be felt for the excessively central role of error in the discipline of undue payments, and the simplistic solution in the form of an alternative error – liberality, which rests on a postulate of freedom that could satisfy the society of the 1800s, has been thrown into crisis by the multiplication of payments that characterizes a more complex society such as the current one (TERRÉ, SIMPLER and LEQUETTE, Droit civil. Les obligations, Paris, Dalloz, 1996, p. 784. But already LOUSSOUARN, La condition d’erreur du solvens dans la répétition de l’indu, in Rev. trim. dr. civ., 1949, p. 212 ff., spoke of the error as a «poor relative» in the scope of the assumptions of the debt).

As for France, French authors and judges traditionally believed that if the solvens acts consciously, it is legitimate to think that the attribution is supported by a cause, primarily the liberal intention or the natural obligation. The problem also arises from the fact that while article 1377 of the Code civil states “lorsquune personne, qui, par erreur, se croyat débitrice…”, article 1376, also dedicated to the repetition of the undue, contains no reference to the error. Faced with this normative situation, the French judges, in recent years, used to distinguish between two hypotheses: a) the error had to be proved by the “solvens” if the “accipiens” was a creditor but the “solvens” was not the real debtor; b) the error did not have to be proven in the other cases. This evolution culminated in the denial of error as an indispensable requirement of the action of enrichment: the undue payment is always returnable if it was made without a liberal intention.

Even in Germany, jurisprudence today tends to give less importance to proof of error, although the requirement is expressly provided for (§ 814 BGB): in practice, it is no longer the “solvens” who has to prove that he has paid as a result of an error, but it is the “accipiens” who has to prove the voluntary nature of the payment.

We come to the second example, relating to the German influence on French and Italian jurisprudence: it is the risk for the loss of the undue res, delivered in execution of an invalid contract. This is a particularly slippery terrain: in fact, if the deed is void, given the unproductiveness of the legal effects of the transaction, the “solvens” has always remained the owner of the good, and as a general rule the “res perit domino principle” should apply. The art. 2037 of the civil code however, transfers the risk of the loss on the “accipiens”, even in the hypothesis in which the loss is due to unforeseeable circumstances. Contractual restitutions cannot be said to be isolated and autonomous, because they arise from a synallagmatic bond; Italian law, however, considers the single condictiones separately.

When the right to restitution originates from the invalidity of a property transfer contract, the services of which have already been performed by both parties, if the thing has perished or deteriorated in the meantime, the transferor will in any case be required to return for entire price received, while the buyer in good faith will benefit from the provisions of the third paragraph of art. 2037 of the civil code, which imposes the refund only within the limits of his own enrichment (no problem arises, however, if the “accipiens” is in bad faith: in this case the refund always has as its object the market value of the service ); and if the thing has been transferred to a third party free of charge, the third party purchaser will also be able to benefit from a similar limitation based on the first paragraph of the art. 2038 of the civil code. Take, for example, a normal car sales contract: if an accident occurs during the relationship and the car turns into wreckage, in the event of dissolution of the contract, on the basis of the ordinary “condictio” regime, the seller will have to return the entire amount received (art. 2033 of the Italian Civil Code); on the other hand, the purchaser, being responsible only within the limits of enrichment (articles 2037 and 2038 of the civil code), can limit himself to returning the scrap. The restoration of the “status quo ante” can therefore lead to profoundly unfair results. This problem is solved in Germany with the acceptance of the so-called “Saldotheorie” or “synallagma de facto”, which requires each party to deduct from their claim for recovery the value corresponding to the service they have received. The “Saldotheorie” has now prevailed, in Germany, over the so-called “Zweikondiktionentheorie”, which, on the contrary, considering the restitution obligations incumbent on the two parts of the relationship in isolation, deems them mutually independent; so that the imbalance that occurs following the possible supervening impossibility of one of the two restitution services would have no disciplinary impact.

However, the “Saldotheorie” cannot be applied if the invalidity of the contract is attributable to deceptions carried out by the seller to the detriment of the buyer: German jurisprudence obliges the seller who has committed malicious behavior to repay the full amount received, even if the buyer may return a destroyed or heavily deteriorated item to him. The same applies in the event of default by the seller or in the event that the undue return has deteriorated due to defects attributable to the seller. Furthermore, the settlement rule is not applied when the subject, whose restitution has become impossible, is incapable: he will in any case have the right to full restitution. The principle of synallagma (“Zug um Zug”), which enshrines the rule according to which in the event of the total or partial impossibility of a performance, the counterparty is released in a corresponding way, does not apply only to « primary » obligations but even for the «secondary» ones (LARENZ, Schuldrecht, I, München, 1982, p. 383, explicitly proposes the analogous extension to secondary obligations of the rule established for primary obligations by § 323 BGB and by article 1463 of the Italian civil code). The rule, which has the inherent limitation of being able to be applied only when both contracting parties have performed their respective services, was later corrected by Flume (FLUME, Der Wegfall der Bereicherung in der Entwicklung vom römischen zum geltenden Recht, in Festschrift Niedermeyer, Göttingen, 1953, p. 103 and p. 129; in the same sense: LEHMANN, Berücksichtigung der für den Erwerb einer fremden Sache gemachten Aufwendungen bei der Bereicherungshaftung, in Festschrift Nipperdey, München-Berlin, 1955, p. 31), in the sense that the party whose performance has become impossible must deduct from his right to repayment the agreed value of the performance. (For the Saldotheorie in German and Swiss law, see GILLIARD, La disparition de l’enrichissement. Etude comparée des droits allemand et suisse, Genève, 1985, p. 22 ff. and p. 153 ff.). In recent times, the Saldotheorie has found acceptance in French jurisprudence: the traditional solution which considered the restitution obligations resulting from invalid contracts as mutually independent is being replaced by the evaluation of the restitution device as an inverted synallagmatic contract (CARBONNIER, Les obligations, 15a ed., Paris, 1991, § 107; P. MALAURIE and AYNES, Droit civil. Les obligations, Paris, 1985, p. 34). In Italy, in the wake of the Saldotheorie and its additions, the problem has been solved by mutually conditioning the two restitution obligations: it follows that if one party can no longer obtain the restitution to which he is entitled, he is not required to repay the whole against the counterparty. It is a question of derogating from the res perit domino principle. But the derogation is justified here in the advisability of placing the risk of loss or deterioration of the asset on the user buyer, rather than on the owner seller, even in the absence of fault and therefore also in the event of accidental loss. The “Saldotheorie” has been applied by Italian jurisprudence to the void lease contract: if the lessee could obtain a refund of the fees paid (despite having enjoyed the thing), he would be enriched without cause to the detriment of the lessor. For this reason, the Court of Cassation has denied that anyone who has benefited from the enjoyment of the thing can claim the return of the amount paid as consideration for this enjoyment.

A final note, of a procedural nature: in the Italian legal system, the personal restitution action must be explicitly taken in court, regardless of whether the contract has been contested. On this point, the Italian system has not known the evolution of the French one, where the result has been reached that the nullity action is in itself sufficient to obtain the return of what was lent in execution of the null contract (see GUELFUCCI-THIBIERGE, Nullité, restitutions et responsabilité, Paris, 1992). In Italy, on the other hand, the procedural principle according to which the action for nullity is an action of mere assessment remains firm. Also in Germany, as in Italy, it is necessary to specifically activate the restitution actions to recover what has already been paid, but this is due to the fact that in the German system the means for challenging contracts are only available if the contract has not yet been executed: after the execution, one can only sue for restitution.


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