Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Fri, 4 Apr 2008 01:33 |
| Re: |
Birksian/sine causa approach to enrichment law |
Although this may be a record for late replies, I will weigh in on Charles’ question, at least from the perspective of Quebec law. I suspect that the Quebec solution is one that other codified civilian systems, and at least some non-codified civilian/mixed systems, share.
In Quebec, the problem is in some sense avoided, because the case is considered to be solved by the principles of subrogation, which are not understood as an example of unjust enrichment. In the English of Quebec civil law, subrogation may be conventional (by agreement) or legal (arising by operation of law). The key provision on legal subrogation in the Civil Code of Québec is:
1656. Subrogation takes place by operation of law 1) in favour of a creditor who pays another creditor whose claim is preferred to his because of a prior claim or a hypothec; 2) in favour of the acquirer of a property who pays a creditor whose claim is secured by a hypothec on the property; 3) in favour of a person who pays a debt to which he is bound with others or for others and which he has an interest in paying; 4) in favour of an heir who pays with his own funds a debt of the succession for which he was not bound; 5) in any other case provided by law. The reference in paragraph (5) to ‘provided by law’ means ‘by statute law’, that is, somewhere else in the Code or in some statute. It is paragraph (3) that would give a claim for contribution or reimbursement on Charles’ facts (unless the parties were co-sureties). Similarly, the case of guarantees (called sureties in the English text of the Code) is specifically regulated, including a surety’s claim against the primary debtor, and claims among sureties (arts. 2356-60; the English text is on line One could argue (indeed, in a recent article I did) that in this context, the technique of codification hides the problem rather than solving it in an intellectually satisfying way. The contract of surety, for example, is a special or nominate contract, and the articles mentioned above appear in the rules relating to this special contract, which themselves are situated in the part of the code that provides special rules for all the nominate contracts (sale, mandate, partnership, gift etc). The result is that if a co-surety is claiming contribution against another co-surety, he can point to the rule in art. 2360; he does not have to use the provisions on unjust enrichment which make reference to ‘absence of justification’. But if the subrogation/contribution rules are actually rules about unjust enrichment, then the structure of the Code tends to conceal the question of principle that Charles raises.
Lionel
On 28/11/07 11:16, "Charles Mitchell" wrote:
I'm afraid I can't answer Jacques' question, but I would like to an additional question of my own, by way of footnote to (distraction from?) his interesting comments on the difficulties experienced in civil law jurisdictions with cases where payments are made to discharge debts which turn out not to have been due. I believe that civil law / mixed jurisdictions have also had difficulties with payments of debts for the payment of which the claimant was liable, but which should more properly have been paid in part or in full by a defendant who was also liable for the same debt (i.e. cases which are treated in common law systems as claims for contribution or reimbursement). Since the debt owed by the claimant to the creditor in these cases was due, one could say that there was legal ground for the creditor's payment, suggesting that there is a legal justification for the transfer on which not only the creditor but also the defendant can rely, in the event that the claimant tries to get his money back - cf Pothier, Traité des Obligations 2.2.7.4. Hence I believe that civilian jurists have had to finesse this point in order to allow recovery - but I'd be interested to hear from people in civilian / mixed jurisdictions how this works out exactly.
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