Caracterul subsidiar al actio de in rem verso, reflectat în jurisprudenţa recentă a instanţei supreme
Subsidiary character of the actio de in rem verso, reflected in the recent case law of the Supreme Court

Summary/Abstract: For about a century after the pronouncement of some landmark decisions by the French Court of Cassation in 1914 and 1915, both before and after the entry into force of the current Romanian Civil Code, in the legal literature and in jurisprudence it has been emphasized that actio de in rem verso is admissible only in the absence of any other legal alternative, whereas the application for a refund based on unjust enrichment is of a subsidiary nature. Therefore, if the party that suffered a loss has another legal option to recover that loss, such as an action ex contractu, or ex lege or even an action based on undue payment, his claim for restitution will not be accepted, if it is based on unjust enrichment. Based on these conclusions, by means of a decision rendered on appeal at the beginning of this year, the Second Civil Division of the High Court of Cassation made important clarifications regarding the notion of subsidiarity of the restitution action based on unjust enrichment. On the one hand, it was held that both the material and the legal conditions must be satisfied cumulatively, the failure to fulfill a single condition being sufficient to determine the inadmissibility, from that point of view, of actio de in rem verso. On the other hand, it has been held that even if this alternative means exists, but it encounters a legal obstacle, the creditor of the refund cannot bring the action for unjust enrichment to replace the alternative means which proved ineffective.

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