СТАТУС НЕОСНОВАНОГ ОБОГАЋЕЊА У УПОРЕДНОМ ПРАВУ
THE STATUS OF UNJUSTIFIED ENRICHMENT IN COMPARATIVE LAW

Summary/Abstract: Unjustified (unjust) enrichment of another’s property is a prohibited modification pertaining to the property of two persons. The legal order responds to such modification by applying the legal principle prohibiting unjustified enrichment and a series of related rules based on this principle. Upon this legal principle, some countries have developed a separate legal institute of unjustified enrichment which is governed by the rules of statutory law. Some other countries have accepted this legal institute through judicial practice and legal theory, without enacting relevant statutory regulation. The process of recognizing unjustified enrichment as a distinct area of the law of obligations has by no means been simple and straightforward. Looking back into the genesis and development of this institute, we can observe that it has always kept emerging in the area between contract and tort law. Moreover, determining a precise definition of the concept of unjust enrichment has been further aggravated by the complexity of diverse legal relations, which either featured or resulted in unjust acquisition of another’s property. The possible sources of unjustified enrichment have always been numerous, particularly in the contemporary society. Some of these acts may be classified as torts with the capacity to produce damage, which makes the identification of legal relations and the choice of the applicable rule of law even more difficult. In most cases, unjustified enrichment is a result of a legitimate and (quite frequently) voluntary human action, which brings legal relations generated in this way close to contractual relations. Finding one’s way in this labyrinth of legal relations and concepts may be difficult at times, for which reason unjustified enrichment has been the latest legal institute to receive its “civil status” in the positive law trichonomy of the sources of obligation law, which are classified as contracts, torts and unjust enrichment. Once acquired, the status and the distinctive nature of unjustified enrichment as related to contracts and torts have not been a matter of further dispute in the legislations of the countries of the European-continental legal system. Unjustified enrichment has either been regulated through statutory law as a separate source of obligation law (in Germany, Switzerland and Austria) or has achieved an independent status due to the collaboration of the judicial practice and legal theory (in France). Across Europe, unjustified enrichment has entered the law school curricula as a special area of obligation law, which is the direct contribution of the legal scholars who have been sufficiently receptive either to pursue the legislator’s policy on unjustified enrichment or to “impose” this legal institute and oblige the legislature to regulate this issue by statutory law. The status of unjustified enrichment is much less ambiguous in the contemporary private law of the common law countries. The initial procedural obstacles which made it difficult to file a claim for unjustified enrichment on separate grounds have been removed. The presence of a number of claims for restitution still characterizes the legal sanctioning of unjustified enrichment but there is a significant difference: this legal principle brings them together under a single heading and distinguishes them from other claims (in contracts or torts) which have a similar aim.

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