Restitutionary obligation is the response to unjust enrichment. Unjust Enrichment at the expense of another must be restituted in order to secure a corrective justice. On this very basis restitutionary, as opposed to compensation, aims to deprive the defendant of a gain rather than to compensate the plaintiff for the loss suffered. The aim of restitutionary obligation is the same in both common and civil law since the Roman jurist Pomponius wrote: "nam hoc natura aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem.", "by the law of nature it is right that nobody should be unjustly enriched at another's expense." The Roman influence is of great importance in the development of the law of restitution. Its influence is more perceivable in civil law countries as there is a "continuing influence of Roman ideas and Roman legal method on Continental systems of law." The common and civil law approach of the law of restitution have different background from which results a different approach of the problem. Based on Roman law and especially on three remedies, the civil law of restitution result of a long evolution. Classical Roman law did not offer a general remedy for unjust enrichment but offered three specific remedies: the condictio enables a plaintiff who had paid money or delivered goods in error to obtain back the money or goods; the negotiorum gestio enables one who acted in an emergency in the interest of another, without previous authority to be compensated for his altruistic behaviour; finally the actio de in rem verso compels the paterfamilias to give back what he had obtained as a consequence of a contract executed by son.
[...] Even if the current civil law of restitution can be traced back to Roman law, it is clear that the common law of restitution has now reached a certain degree of development; as seen previously in this essay, it appears that “English law certainly allows a plaintiff to sue in most of the situations where he would have a claim for enrichment on the Continent.”[66] So that broadly speaking one can assume that in civil and common law there is recognition that one cannot be unjustly enriched at the expense of another. [...]
[...] The House of Lords held that the pre - payment was recoverable in principle on the grounds that it had been given for a consideration that had failed. It appears that the payment being made without any thing in exchange, there is no consideration so that there is a right for restitution. The doctrine of failure of consideration has always been regarded as only applicable where that failure of the promised performance is complete or total. Any partial performance constitutes a bar to restitution. [...]
[...] Only the Italian Civil Code is now clear that the restitutionary obligations may be based on the lack of an original duty to pay alone. This peculiarity of the Italian legal system can be understood as in Italy, to make a donation, particularly solemn formalities are required. As a consequence, if these formalities are not fulfilled it is clear that the payer did not intend to make a gift. However, it has to be noted that where someone executes another's obligation because he believes himself to be the debtor, the proof of a mistake is still required. [...]
[...] It is clear that common law lawyers fear that the recognition of the principle of unjust enrichment give judges carte blanche to adjudicate disputes in accordance with their own conceptions of justice.”[19] It seems however that the common law for restitution as reached, case after a case a level such that “English law certainly allows a plaintiff to sue in most of the situations where he would have a claim for enrichment on the Continent.”[20] Such a statement needs to be validated by the analysis of the meaning of each factor which justifies a claim for restitution will be studied with regards to their common and civil law meaning A narrower approach of civil and common law approach: a study of the different factors which justify claim for restitution 2.1 Mistake The place of mistake in common and in civil law will be studied first as it appears to be the most obvious factor justifying restitutionary obligation. [...]
[...] Ibbetson in an essay entitled unjust enrichment in English law'[15], goes even further saying that “[n]obody has ever complimented English law on its logical structure.” He continues saying that the system is “build up piecemeal from case to case.” The common law system is indeed based on case law: the law of restitution is therefore built upon a profusion of decisions. As a consequence “until recently most scholars of the English law of restitution admitted that it was impossible to predict when a claim would be allowed.”[16] This question hopefully may find an answer at the end of this development. [...]
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