Autor: Antonio Albanese, Professore Associato, Alma Mater Studiorum Università di Bologna
It is difficult to classify restitution obligations within the three great juridical models of the contemporary age: the Roman-French one, the Roman-German one, the English one. In fact, on the classic tripartition just exposed, it is possible to superimpose, in matters of restitution, a bipartition: on the one hand, the French system; on the other, the Anglo-German system (although it is possible to recognize a gradual process of approximation between the different models). A decisive difference between the German-Anglo-American model and the French-Italian one is that the restitution remedy, in the former, has no subsidiary character.
In common law systems, the principle of unjustified enrichment is based on only three assumptions: a) an enrichment of the defendant; b) which is at the expense of the plaintiff; c) the injustice of enrichment. The American Restatement of Restitution (1937), in its 215 paragraphs, makes no mention of the requirement of subsidiarity. In the United States and in England, the plaintiff has the possibility of choosing between the two remedies more suitable for the protection of his interest, and will prefer to act in enrichment, for example, if the action for damages has expired, or if he deems it convenient to obtain, rather than compensation for the damage suffered, the entire devolution of the profits earned by the defendant (so-called accounting of profits) (FRIEDMANN, “Restitutions of Benefits Obtained through the Appropriation of Property or the Commission of Wrong”, in 80 Col. L.R., 1980, p. 504; HEDLEY, “The Myth of Waiver of Tort”, in 100 L.Q.R., 1984, p. 653).
In the German system, § 812 BGB, after enunciating the well-known rule according to which a person who obtains something as a result of the performance of another person or otherwise at his expense without legal grounds for doing so is under a duty to make restitution to him, it continues by specifying that this duty also exists if the legal grounds later lapse or if the result intended to be achieved by those efforts in accordance with the contents of the legal transaction does not occur (“Wer durch die Leistung eines anderen oder in sonstiger Weise auf dessen Kosten etwas ohne rechtlichen Grund erlangt, ist ihm zur Herausgabe verpflichtet. Diese Verpflichtung besteht auch dann, wenn der rechtliche Grund später wegfällt oder der mit einer Leistung nach dem Inhalt des Rechtsgeschäfts bezweckte Erfolg nicht eintritt”). § 852 BGB states that if by a tort the person liable to pay compensation obtains something at the cost of the injured person, then even after the claim to compensation for the damage arising from a tort is statute-barred he is obliged to make restitution under the provisions on the return of unjust enrichment (“Hat der Ersatzpflichtige durch eine unerlaubte Handlung auf Kosten des Verletzten etwas erlangt, so ist er auch nach Eintritt der Verjährung des Anspruchs auf Ersatz des aus einer unerlaubten Handlung entstandenen Schadens zur Herausgabe nach den Vorschriften über die Herausgabe einer ungerechtfertigten Bereicherung verpflichtet”). The usefulness of this provision is given by the fact that while the action for compensation for damages is statute-barred according to the ordinary term, and therefore in three years (§ 195 BGB), the restitution claim for unjustified enrichment is statute-barred ten years after it arises, or, notwithstanding the date on which it arises, thirty years after the date on which the act causing the injury was committed or after the other event that triggered the loss (§ 852 BGB: “Dieser Anspruch verjährt in zehn Jahren von seiner Entstehung an, ohne Rücksicht auf die Entstehung in 30 Jahren von der Begehung der Verletzungshandlung oder dem sonstigen, den Schaden auslösenden Ereignis an”). Therefore, the German code lacks any reference to subsidiarity. The concurrence of remedies exists not only with the tort action, but also with proprietary claims. The doctrine was initially divided, in the absence of a specific norm, between an extreme thesis that claimed an absolute subsidiarity and a more elastic thesis about a relative subsidiarity (i.e. such as to prevent competition only with regard to some of the typical exercisable actions). At the end, it was agreed that the element of the “lack of legal foundation” (“ohne rechtlichen Grund”) is already a sufficient element to delimit the field of action of the remedy. Furthermore, in cases where there is a special regulation, it is clear that it must prevail over the general regulation referred to in § 812, without having to resort to the concept in question.
The Dutch Civil Code does not mention the concept of subsidiarity either. Yet the question was addressed by Meijers during the preparatory work (VAN ZEBEN, Parlamentaire Geschiedenis van het Nieuw Burgerlijk Wetboek, boek 6, p. 830), where he referred to the possibility that a situation could be governed simultaneously by the articles on restitution and by another legal rule. It was established that the question must be resolved bearing in mind the objective of the other legal rule involved: if the other applicable remedy is that of liability for damages (in the sense that all the conditions of both one and the other are verifiable), it is up to the plaintiff to choose the remedy he prefers.
Even a part of Spanish doctrine has, in recent years, modified the original propensity to construct the enrichment action as a subsidiary remedy, thus emancipating itself from the French model. The Spanish code, like the French one, does not codify the unjust enrichment, and the Spanish judges have traditionally reconstructed it by providing it with the same prerogatives that it had previously acquired in the French and Italian systems. As long as the dogmatic elaboration of the prohibition of enrichment had little elaboration, and an explanation was still given in terms of “moral rule”, the subsidiary nature had proved functional to the need to avoid a disproportionate breadth of action (ALVAREZ CAPEROCHIPI, El enriquecimiento sin causa, Granada, 1989, p. 108 s. e p. 116; LACRUZ BERDEJO, “Notas sobre el enriquecimiento sin causa”, in RCDI, 1969, p. 595 ss.; MIQUEL GONZÁLEZ, voce “Enriquecimiento injustificado”, in Enciclopedìa juridica básica, vol. II, Madrid, 1995, p. 2806). But today it is observed (BASOZABAL ARRUE, Enriquecimiento injustificado por intromision en derecho ajeno, Madrid, 1998, p. 104) that there is no reason to support the incompatibility between the Aquilian action and the actio de in rem verso, or the subsidiarity of the second with respect to the first, in consideration of the diversity of functions, requisites and statute of limitations of the two remedies. According to art. 1968 of the Spanish civil code, the tort law action is statute-barred one year; the enrichment action, in the absence of an express legal provision, is statute-barred five years (art. 1964, since 7 October 2015; previously it was 15 years). According to these authors, with the progressive better understanding of the phenomenon, subsidiarity has lost its foundation: today, the compatibility of the enrichment action with the tort action is permitted, in order to allow the exercise of the first once the second has been prescribed, and to allow the return of the profit (ALVAREZ CAPEROCHIPI, op. cit., p. 110 f. In jurisprudence, S., TS, 24 January 1975. The turning point, however, was that of the Tribunal Supremo of 12 April 1955, which for the first time affirmed the substantial difference between the action for damages, which does not need the requirement of enrichment, from the action of enrichment, which does not require damage, because the mere «desplazamiento patrimonial indebido» is sufficient). However, jurisprudence continues to state that “si la ley prevé un supuesto en que la atribución patrimonial corresponde a un precepto del ordenamiento o a una relación contractual, no puede mantenerse las doctrinas del enriquecimiento injusto” (Tribunal Supremo, 29.6.2015, n. 387) and that “la acción de enriquecimiento deba entenderse subsidiaria, en el sentido de que cuando la ley conceda acciones específicas en un supuesto regulado por ella para evitarlo, son tales acciones las que se deben ejercitar y ni su fracaso ni su falta de ejercicio legitiman para el de la acción de enriquecimiento” (Tribunal Supremo, 19.2.1999, n. 121).
In Italy, the general propensity of Italian legal science for a restrictive interpretation of the requirements of the enrichment action, finds its most fertile ground, on the one hand, in the “patrimonial decrease” required by art. 2041 of the Civil Code, on the other hand precisely in the subsidiarity required by art. 2042. The concept of “abstract subsidiarity” prevailed: recourse to the enrichment action is possible only in the presence of “damage” and only when there was no other remedy, even if only abstractly available for the purpose to obtain compensation. (Only some authors prefer the opposite conception of “subsidiarity in concrete”, according to which art. 2042 c.c. has the meaning of excluding the exercise of the action of enrichment only for the time in which the offer of other defenses exists: see. e.g. SIRENA, La gestione di affari altrui, Torino, 1999; ALBANESE, Ingiustizia del profitto e arricchimento senza causa, Padova, 2005). The direct consequence is the clearly superior practical relevance that the principle of enrichment has assumed in the legal systems of the countries mentioned, compared to the italian one, which risks being marginalized by an increasingly topical discussion in the international arena. Especially since in Italy the prevailing conception of subsidiarity is in some ways even more restrictive than the French one; the transalpine jurisprudence has in fact adopted the distinction between legal obstacle (such as limitation or forfeiture) and factual obstacle (such as the bankruptcy of the defendant): only if the main action could not be exercised due to a legal obstacle, the practicability of the actio de in rem verso is precluded. (Furthermore, the French Court of Cassation is also beginning to express an erosion of subsidiarity, starting from a sentence that caused astonishment in doctrine: Cass., 3 June 1997, in Juris-Classeur périodique, 1998, p. 1157). In any case, the rigorous exegesis carried out in Italy regarding the subsidiary nature, and through it the substantial elimination of the action of enrichment from the legal system, is once again confirmed only in the French system. But in France, where distrust towards the institute has been such as to even avoid an express standardization of it, the jurisprudence that applies it has to deal with a less flexible system than the one placed before Italian interpreters, not being allowed there in in no case the accumulation of different remedies (by now widely accepted at least in matters of contractual and non-contractual liability). Moreover, even the French scholars begin to speak of the subsidiarité as a useless and embarassant principle (REMY, “Le principe de subsidiarité de l’action de in rem verso en droit fran¸ais,” in L’arricchimento senza causa, edited by V. Mannino, Torino, 2005, p. 71 ff.). The potential of the general enrichment clause should be developed above all in cases of illegitimate interference by third parties in interests worthy of protection: for example in the case of personality rights such as the particularly significant one, to the image, where the remedial technique, of jurisprudential creation, of the “price of consent” does not offer adequate protection to the injured party, especially when it comes to an unknown person. There are also strong perplexities that the adoption of the compensatory technique arouses in other cases where the adoption of the restitutory logic would seem more pertinent: think of the guilty acts (and therefore irrelevant for art. 2600 of the civil code) of unfair competition, to the position of the transferor in the double real estate alienation, to the damage suffered by the employer due to the temporary incapacity of the worker due to the unlawful act of the third party. And think of the the violation of rights on intangible assets (think of unpatented or non-patented intellectual works patentable, or to the protection of the de facto trademark): Art. 125 of the Industrial Property Code (legislative decree 10 February 2005, n. 30), states, regarding compensation for damages, that “il lucro cessante è valutato dal giudice anche tenendo conto degli utili realizzati in violazione del diritto” (“the loss of profit is assessed by the judge also taking into account the profits made in violation of the law”). To extend the effectiveness of the remedy to all these cases, it would be sufficient to recognize that the expression “to damage” contained in the art. 2041 of the Civil Code, in reality, is not dissimilar to that “at the expense” of the Anglo-German system, and accepts in an interpretative way, in other respects, a conception of subsidiarity free from the prejudices that atavicly characterize the institution. Neither the requirement of capital reduction nor that of subsidiarity constitute insurmountable obstacles.
From the investigation carried out, an evident trend emerge towards an erosion of the subsidiary nature of the remedy. It is no coincidence that Book VII of the Draft Common Frame of Reference, that presents a codification of the law of unjustified enrichment derived from European jurisdictions and intends to constitute a synthesis of the prevailing solutions in national legal systems, do not refer to”subsidiarity”. Chapter 2 of Book VII Chapter 2 is entitled “When enrichment unjustified”. The key provision of Chapter 2 is art 2:101, as follows: 2:101: Circumstances in which an enrichment is unjustified (1) An enrichment is unjustified unless: (a) the enriched person is entitled as against the disadvantaged person to the enrichment by virtue of a contract or other juridical act, a court order or a rule of law; or (b) the disadvantaged person consented freely and without error to the disadvantage. (2) If the contract or other juridical act, court order or rule of law referred to in paragraph (1)(a) is void or avoided or otherwise rendered ineffective retrospectively, the enriched person is not entitled to the enrichment on that basis. (3) However, the enriched person is to be regarded as entitled to an enrichment by virtue of a rule of law only if the policy of that rule is that the enriched person is to retain the value of the enrichment. (4) An enrichment is also unjustified if: (a) the disadvantaged person conferred it: (i) for a purpose which is not achieved; or (ii) with an expectation which is not realised; (b) the enriched person knew of, or could reasonably be expected to know of, the purpose or expectation; and (c) the enriched person accepted or could reasonably be assumed to have accepted that the enrichment must be reversed in such circumstances. It means that the operational ambit of unjust enrichment must be delimited, but that for this purpose an adequate check on the presence or absence of a just cause is sufficient. The DCFR, Art. 1:101(1) (Basic rule) provides: “A person who obtains an unjustified enrichment which is attributable to another’s disadvantage is obliged to that other to reverse the enrichment”. The art. 7: 102 DCFR, then, entitled “Concurrent Obligations”, in admitting the possibility of accumulation between civil liability and unjust enrichment, states that when the impoverished person also has “a claim for reparation for disadvantage”, then “the satisfaction of one of the claims reduces the other claim by the same amount”. Therefore, unjustified enrichment law coexists with other claims and it is not a mere subsidiary instrument: in Book VII, unjustified enrichment is not built as a “merely subsidiary field of law” but rather as a separate and complete component of the law of obligations [as the same drafters of Book VII observe: VON BARR and SWANN, Principles of European Law:
Unjustified Enrichment (OUP 2010), (n. 6) 92]. The keystone for the acceptance of a unitary concept at the European level, then, presents its fulcrum in the absence of just cause. However, it remains to be seen whether such a synthesis can really, and must, be left to the law, or is not rather destined to have a more rapid response in jurisprudential solutions, in a future in which “the adaptation of the law to changes in reality cannot be entrusted only to a rigid instrument, such as the law” but “it also requires a flexible instrument, such as jurisprudence, capable of evolving day by day in harmony with the evolution of reality” (GALGANO, La globalizzazione nello specchio del diritto, Bologna, 2005, p. 115).
