Dear Professor Lionel Smith.

My name is Dmitry Salmin. I'm a graduate law student from St.
Petersburg State University, Russia. Now I'm working on my master's
thesis on unjust/unjustified enrichment.
At the end of my this year's study placement in Estonia I've taken an
interest in defence known in the common law of restitution as change
of position and in German enrichment law as Wegfall der Bereicherung.
The defence has been extensively discussed in literature on common law
for several years (especially after Lipkin Gorman v. Karpnale Ltd.).
Now the defence is provided by DCFR.

I believe the problem of security of receipt of the debtors is of a
great importance in Russia, but, unfortunately, it hasn't had any
satisfactory solution in Russian legal science. Furthermore, the
subject matter isn't discussed in academic literature to the right
degree.

Any comparative research in this field is a very difficult endeavor.
So I would be very much obliged to you for any help towards my target.
***

One of the questions I have concerns the following.

1. As E. von Caemmerer points out (in respect to German law) a
contract between an enriched defendant and a third person as a rule
can not be a legal ground for the enrichment (when condictiones based
on encroachment are under consideration). E. g. if a person without
title disposes of an object he previously purchased from a thief, he
remains responsible in restitution (furthermore, as an exceptional
case, he is not allowed to plead change of position defence). So
prestations to third parties are often treated as an argument (one of)
in favour of the so called itemized approach to the notion of
enrichment (thus, in accordance with art. VII. – 3:101: (Enrichment)
of the DCFR "In determining whether and to what extent a person
obtains an enrichment,no regard is to be had to any disadvantage which
that person sustains in exchange for or after the enrichment". The
enriched person has only the defence: VII. – 6:102: (Juridical acts in
good faith with third parties) "The enriched person is also not liable
to reverse the enrichment if: (a) in exchange for that enrichment the
enriched person confers another enrichment on a third person; and (b)
the enriched person is still in good faith at that time").

2. The question is how to treat the following situation under German
law.
A is a bona fide purchaser of stolen goods (so, he is not an owner). B
is a lessee of the goods (but he is in bad faith, he knows that the
goods belong to C who is a true owner of the goods). B has been paying
rent to A (at market). Subsequently C successfully vindicate the goods
from A. A is protected by § 987 (1) BGB: his enrichment is justified
with regard to C.
2.1 Is it possible to treat the contract between A and B as valid and
producing a legal ground for the enrichment obtained by A (with regard
to B)?(I think that is possible).
2.2 Is B liable in restitution? Here I'm not sure. This would lead to
payment of double rent by B. It would look like a sanction.
2.3 Does good (of bad) faith of И play any role?

And finally what's with itemized approach here? May be the only
correct solution (taking into account A's right to emoluments under §
987(1)BGB) is to conclude that B's enrichment is at the expense of A,
not C and none has a restitutionary claim in the situation described?

Sorry for my English.

Respectfully yours

Dmitry Salmin.

--
С уважением, Дмитрий Салмин.

mailto:nimlas@rambler.ru

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