The German Law of Unjustified Enrichment and Restitution

A Comparative Introduction

Author: Gerhard Dannemann

Publisher: Oxford University Press on Demand

ISBN: 0199533113

Category: Law

Page: 327

View: 8808

This text provides a comprehensive description in the English language of the German law of unjust enrichment, by explaining how this works in the context of German law, and by discussing the implications this would have if the German system were implemented in an English legal environment.
Posted in Law

Unjustified Enrichment

Key Issues in Comparative Perspective

Author: David Johnston,Reinhard Zimmermann

Publisher: Cambridge University Press

ISBN: 9781139432634

Category: Law

Page: N.A

View: 9094

Unjustified enrichment has been one of the most intellectually vital areas of private law. There is, however, still no unanimity among civil-law and common-law legal systems about how to structure this important branch of the law of obligations. Several key issues are considered comparatively in this 2002 book, including grounds for recovery of enrichment, defences, third-party enrichment, as well as proprietary and taxonomic questions. Two contributors deal with each topic, one a representative of a common-law system, the other a representative of a civil-law or mixed system. This approach illuminates not just similarities or differences between systems, but also what different systems can learn from one another. In an area of law whose territory is still partially uncharted and whose borders are contested, such comparative perspectives will be valuable for both academic analysis of the law and its development by the courts.
Posted in Law

Unjust Enrichment in South African Law

Rethinking Enrichment by Transfer

Author: Helen Scott

Publisher: A&C Black

ISBN: 1782251391

Category: Law

Page: 250

View: 8557

Conventional thinking teaches that the absence of liability - in particular contractual invalidity - is itself the reason for the restitution of transfers in the South African law of unjustified enrichment. However, this book argues that while the absence of a relationship of indebtedness is a necessary condition for restitution in such cases, it is not a sufficient condition. The book takes as its focus those instances in which the invalidity thesis is strongest, namely, those traditionally classified as instances of the condictio indebiti, the claim to recover undue transfers. It seeks to demonstrate that in all such instances it is necessary for the plaintiff to show not only the absence of his liability to transfer but also a specific reason for restitution, such as mistake, compulsion or incapacity. Furthermore, this book explores the reasons for the rise of unjust factors in South African law, attributing this development in part to the influence of the Roman-Dutch restitutio in integrum, an extraordinary, equitable remedy that has historically operated independently of the established enrichment remedies of the civilian tradition, and which even now remains imperfectly integrated into the substantive law of enrichment. Finally, the book seeks to defend in principled terms the mixed approach to enrichment by transfer (an approach based both on unjust factors and on the absence of a legal ground) which appears to characterise modern South African law. It advocates the rationalisation of the causes of action comprised within the condictio indebiti, many of which are subject to additional historically-determined requirements, in light of this mixed analysis.
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Elgar Encyclopedia of Comparative Law, Second Edition

Author: J. M. Smits

Publisher: Edward Elgar Publishing

ISBN: 1781006105

Category: Law

Page: 1000

View: 830

Acclaim for the first edition: ïThis is a very important and immense book. . . The Elgar Encyclopedia of Comparative Law is a treasure-trove of honed knowledge of the laws of many countries. It is a reference book for dipping into, time and time again. It is worth every penny and there is not another as comprehensive in its coverage as ElgarÍs. I highly recommend the Elgar Encyclopedia of Comparative Law to all English chambers. This is a very important book that should be sitting in every university law school library.Í _ Sally Ramage, The Criminal Lawyer Containing newly updated versions of existing entries and adding several important new entries, this second edition of the Elgar Encyclopedia of Comparative Law takes stock of present-day comparative law scholarship. Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countriesÍ legal systems and, as a whole, presents an overview of the current state of affairs. Providing its readers with a unique point of reference, as well as stimulus for further research, this volume is an indispensable tool for anyone interested in comparative law, especially academics, students and practitioners.
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The Restatement Third: Restitution and Unjust Enrichment

Critical and Comparative Essays

Author: Charles Mitchell,William Swadling

Publisher: A&C Black

ISBN: 1782251375

Category: Law

Page: 338

View: 2597

The publication of the Restatement Third: Unjust Enrichment and Restitution by the American Law Institute in July 2010 was an event of major importance, not only for the development of the law of unjust enrichment in the US, but also for global scholarship relating to this area of private law. The Restatement First appeared in 1937, and the Restatement Second was abandoned; hence the Restatement Third is the most significant survey of the American law on this topic for over 70 years. Private law has been a comparatively neglected area of study in US law schools for several decades, and this is particularly true of the law of unjust enrichment. However, the appearance of the Restatement Third has prompted a renewal of interest in the subject among US scholars, and it is hoped that the present volume of essays will contribute to this revival, while reflecting on the lessons to be learned from the Restatement by other legal systems. Featuring the work of leading scholars from the UK, Germany, South Africa, Canada, Hong Kong and Australia, the essays undertake critical and comparative analysis of the Restatement, and offer fresh insights into the rules that it articulates.
Posted in Law

Unjustified Enrichment

Author: Jack Beatson,E. J. H. Schrage,Barry Nicholas

Publisher: Hart Pub Limited

ISBN: N.A

Category: Law

Page: 585

View: 1086

This work concerns the law of restitution and contains a wide selection of extracts from the basic texts and commentaries. The materials are chosen and ordered so as to foster comparative study, prefaced by comparative introductions and complemented with annotations.
Posted in Law

The Common European Sales Law in Context

Interactions with English and German Law

Author: Gerhard Dannemann,Stefan Vogenauer

Publisher: OUP Oxford

ISBN: 0191668184

Category: Law

Page: 856

View: 7513

European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (2009) to a European Commission proposal for an optional Common European Sales Law (2011) which is to facilitate cross-border marketing. This book investigates for the first time how CESL and DCFR rules would interact with various aspects of domestic law, represented by English and German law. Nineteen chapters, co-authored by British and German scholars, examine such interface issues for eg pre-contractual relationships, notions of contract, formation, interpretation, and remedies, extending to non-discrimination, third parties, transfers or rights, aspects of property law, and collective proceedings. They go beyond a critical analysis of CESL and DCFR rules by demonstrating where and how CESL rules would interact with neighbouring areas of English and German law before English and German courts, how domestic traditions might influence the application, which aspects might motivate sellers and buyers to choose or reject CESL, and which might serve as model for national legislators. The findings are summarized in the final two chapters.
Posted in Law

The Foundations of Restitution for Wrongs

Author: Francesco Giglio

Publisher: Bloomsbury Publishing

ISBN: 1847313531

Category: Law

Page: 262

View: 7657

'Restitution for wrongs', or 'restitutionary damages', is the judicial award which compels the wrongdoer to give up to the victim the benefit obtained through the perpetration of the wrong, independently of any loss suffered by the victim. The establishment of a civil trial in Roman law, which left compensation as the main response, and a widespread, loss-centred interpretation of the Aristotelian theory of corrective justice explain, but do not justify the difficulties encountered by modern attempts to account for restitutionary damages. Mistakes in the classification of this institution have complicated the picture. To overcome some of these problems, this study considers the basic structure of restitutionary damages from different angles. In part one, the topic is analysed from a comparative perspective. Although the focus remains on English law, the German, the Italian and the Roman jurisdictions provide research data which, in part two, support the development of a theory of restitution for wrongs as corrective justice.
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Themes in Comparative Law

In Honour of Bernard Rudden

Author: Bernard Rudden,Peter Birks,Arianna Pretto

Publisher: Oxford University Press on Demand

ISBN: N.A

Category: Law

Page: 302

View: 4080

Compiled in honour of Bernard Rudden, this is a book of essays in comparative law centering on the contribution which comparative analysis can make to the core subjects of private law, namely property and obligations. The essays are contributed by leading academics from all over the world, all of whom owe an intellectual debt to the honorand. The book is intended for practitioners, academics and students of comparative law and private law, in particular in the fields of property and obligations.
Posted in Law

Unjust Enrichment and Public Law

A Comparative Study of England, France and the EU

Author: Rebecca Williams

Publisher: Bloomsbury Publishing

ISBN: 1847315852

Category: Law

Page: 304

View: 1826

This book examines claims involving unjust enrichment and public bodies in France,England and the EU. Part 1 explores the law as it now stands in England and Wales as a result of cases such as Woolwich EBS v IRC, those resulting from the decision of the European Court of Justice (ECJ) in Metallgesellschaft and Hoechst v IRC and those involving Local Authority swaps transactions. So far these cases have been viewed from either a public or a private law perspective, whereas in fact both branches of the law are relevant, and the author argues that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment, or vice versa. In order to achieve this a hybrid approach is outlined which would allow the law access to both the public and private law aspects of such cases. Since there has been much discussion, particularly in the context of public body cases, of the relationship between the common law and civilian approaches to unjust enrichment, or enrichment without cause, Part 2 considers the French approach in order to ascertain what lessons it holds for England and Wales. And finally, as the Metallgesellschaft case itself makes clear, no understanding of such cases can be complete without an examination of the relevant EU law. Thus Part 3 investigates the principle of unjust enrichment in the European Union and the division of labour between the European and the domestic courts in the ECJ's so-called 'remedies jurisprudence'. In particular it examines the extent to which the two relevant issues, public law and unjust enrichment, are defined in EU law, and to what extent this remains a task for the domestic courts. Cited with approval in the Court of Appeal by Beatson, LJ in Hemming and others v The Lord Mayor and Citizens of Westminster, [2013] EWCA Civ 5912 Cited with approval in the Supreme Court by Lord Walker, in Test Claimants in the Franked Investment Income Group Litigation (Appellants) v Commissioners of Inland Revenue and another [2012] UKSC 19
Posted in Law

Unjust Enrichment and the Law of Contract

Author: E. J. H. Schrage

Publisher: N.A

ISBN: 9789041116550

Category: Law

Page: 492

View: 4778

Increasingly, in both common law and civil law jurisdictions, lawyers are seeking to formulate a law of restitution that can provide a reliable remedy in unjust enrichment actions. This pursuit has generated renewed interest in how the law of obligations should be divided. The movement can be seen as both a product of the recent calls for, and recognition of, an English law of restitution and a consequence, in civil law jurisdictions (where traditionally taxonomy has been taken far more seriously), of the modern quest for a general remedy which will overcome the widely-felt disadvantages of existing alternatives. This collection of essays is concerned with these modern developments. It identifies what constitutes unjust enrichment at the plaintiff's expense, and its available remedies, in a number of jurisdictions. Authors explore the boundaries between the law of restitution, the law of torts, and the law of contract. Their analyses reveal how the principle of restitution has permeated, hesitatingly at first and then with greater force, on a case-by-case basis, not only private law but also administrative law, criminal law, and other branches of the law. In the final analysis, unjust enrichment proves to be anything but a Trojan horse smuggled into the well-built structure of the law of obligations; it is a fully-fledged cause of action deserving an appropriate and satisfactory remedy. Scholars and jurists from thirteen countries met in Amsterdam on 18-20 October 2000, for a conference commemorating the late Professor Marcel Henri Bregstein (1900-1957). This book, which presents revised versions of the papers read during this conference, greatly clarifies the status and primary trends in this important area of legal theory and practice, and is sure to be of value to legal scholars and practitioners everywhere.
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International Encyclopaedia of Comparative Law

Author: K Zweigert,U. Drobnig

Publisher: Martinus Nijhoff Publishers

ISBN: 9789028603011

Category: Law

Page: 527

View: 3099

No Sales rights in German-speaking countries, Eastern Europe, Portugal, Spain, Italy, Greece, South and Central America
Posted in Law

Consequences of Impaired Consent Transfers

A Structural Comparison of English and German Law

Author: Birke Häcker

Publisher: Mohr Siebeck

ISBN: 9783161497902

Category: Law

Page: 386

View: 2912

Birke Hacker explores the English and German law on impaired consent transfers of movable property and their reversal in comparative perspective, paying particular attention to the interaction - within each legal system - between the rules and principles of contract law, property law, and the law of unjust(ified) enrichment. In two-party situations, the author focuses on the relationship between contract and conveyance and the closely related question of the transferor's position in the event of the transferee's insolvency. While German law resolves these issues by reference to the well-established principles of separation and abstraction, the relevant English law is still unsettled. The author argues for a generalized power model of so-called 'proprietary restitution' and seeks to demonstrate that conveyances by delivery are best regarded as abstract in English as well as in German law, but explains why English law nevertheless lacks the gist of abstraction a la BGB. Building on this analysis, the author then goes on to examine three-party situations. She looks first at the position of third parties who have acquired the object in question before the transferor has had a chance to reclaim it (raising issues of bona fide purchase and 'leapfrogging') and thereafter at the extent to which the transferor can assert rights to the object's traceable substitutes. As far as English law is concerned, the author shows that the supposed 'third party rights bar to rescission' is not only unnecessary, but misconceived, and that it ought to be abolished.
Posted in Law

Unjust Enrichment and Contract

Author: Tariq A. Baloch

Publisher: Hart Pub Limited

ISBN: N.A

Category: Law

Page: 208

View: 576

This book examines the role of unjust enrichment in the contractual context, defined as contracts which are (a) terminated for breach, or (b) subsisting, or (c) unenforceable. The book makes three claims in relation to the orthodox common law account of restitution (founded on unjust enrichment) in the contractual context. Firstly, the orthodox account correctly proceeds on the basis that the restitutionary claim in the contractual context is founded on an independent cause of action in unjust enrichment, rather than some equitable notion of unconscientiousness or the law of contract. Secondly, the book departs from the orthodox account by rejecting the unjust factors approach and endorsing the absence of basis approach for the law of unjust enrichment. Finally, the book argues that the right to restitution in the contractual context should be determined by the conditionality of the transfer of the benefit rather than a requirement such as the termination of the contract, as the orthodox account dictates. To that end the book proposes the following model, under which the right to restitution in the contractual context is determined by the resolution of the following two questions: (1) Was the transfer of the benefit (eg of money or services) conditional? (2) Was there a qualifying failure of condition? A condition can be, and often is, the other contracting party's counter-performance, but it may also be an event not promised by either party. What qualifies as a failure of condition depends on the type of contract in question. This book identifies two types of contracts, namely those which are apportioned (eg instalment contracts) and those which are unapportioned. It is only in relation to the latter that termination is required. It is a particular strength of the book that it is underpinned by detailed and original historical analysis which makes a novel and distinct contribution to the history of the laws of unjust enrichment and contract. 'Dr Baloch has produced the definitive study of the inter-relationship between contract and unjust enrichment. This has been achieved by carefully considering the historical roots of our common law, and how this is to be understood in its best light in the modern era.'Robert H Stevens, University College, London.'Dr Baloch's exploration of the boundary between contractual and unjust enrichment liability in the 17th to 19th centuries has important things to say about the history of ideas of 'contract' in this period.'Mike Macnair, Oxford University.'This is an innovative and rigorous book which engages with one of the most difficult areas in the law of unjust enrichment, namely the relationship between the law of unjust enrichment and the law of contract. Baloch roots his treatment of the modern law in its history and the historical analysis throughout is very careful and well grounded in the primary sources.'David Ibbetson, Cambridge University.'This is a valuable book, thoughtful and well researched. It is concerned to build a model that fits comfortably with the cases, and its focus is on the work of modern commentators. Those concerned with the relationship of contract and the law of restitution whether at a theoretical level or in practice will benefit by careful study of what Dr Baloch has to say, whether or not they agree with it.'Jack Beatson, Royal Courts of Justice, 14 February 2009 (From the foreword)
Posted in Law

Restitution Law Review

Author: N.A

Publisher: N.A

ISBN: N.A

Category: Restitution

Page: N.A

View: 1624

Posted in Restitution

Restitution

Past, Present and Future : Essays in Honour of Gareth Jones

Author: Gareth H. Jones,William Rodolph Cornish,G. J. Virgo,Janet O'Sullivan,Richard Nolan

Publisher: Hart Publishing

ISBN: 1901362426

Category: Law

Page: 347

View: 2912

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Principles of European law

Unjustified enrichment (PEL unj. enr.). Vol. 8

Author: Christian von Bar,Stephen Swann,Study Group on a European Civil Code

Publisher: sellier. european law publ.

ISBN: 3935808623

Category: Law

Page: 739

View: 8958

"Unjustified enrichment" is one of the three main non-contractual obligations dealt with in the Draft of a Common Frame of Reference. In recent years, unjustified enrichment has been one of the most intellectually animated areas of private law. In an area of law whose territory is still partially uncharted and whose boundaries are contested, this volume of the series Principles of European Law will be invaluable for academic analysis of the law and its development by the courts. During the drafting process, comparative material from over 25 different EU jurisdictions has been taken into account. The work therefore is not only a presentation of a future model for European rules to come, but provides also a fairly detailed indication of the present legal situation in the Member States.
Posted in Law

Compulsion and restitution

a historical and comparative study of the treatment of compulsion in Scottish private law with particular emphasis on its relevance to the law of restitution or unjustified enrichment

Author: J. E. Du Plessis,Stair Society

Publisher: N.A

ISBN: N.A

Category: Law

Page: 209

View: 5401

Posted in Law