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Lionel rightly states, that the structure of the Civil Code of Quebéc would tend to conceal the question of principle, if subrogation/contribution rules were rules about unjust enrichment.

Maybe a view from the “civilian” side on subrogation might be of interest to try to assess the correct qualification of subrogation.

The provision of Art. 1656 CCQ is one form of subrogation in the civil law world. It goes back to similar sections in the Code Napoleon (1804). Equivalent rules were/are contained in the Prussian Land Law (1794), the Austrian General Civil Code (1811), the Saxonian Civil Code (1866), and the German Civil Code (1900). The European ius commune granted the paying guarantor the beneficium cedendarum actionum, as did the classical Roman law, and as still does, e.g., Scots law.

The continental codifications preserved the idea behind beneficium cedendarum actionum: let the paying guarantor have the creditor´s rights against the principal (securities, judgments, main debt) for his recourse. The creditor derives from the creditor the means of recourse. The aforementioned codes only introduced different techniques for this derivative form of reimbursement.

Now, all of the codes have rules on “unjustified enrichment”, and all of them have provisions on “derivative recourse”. Interestingly enough, none of the codes treats “subrogation” in the part on unjust enrichment. And, none of the rules on unjust enrichment are similar to the technique of subrogation. The same is true for the Roman sources.

So, in an – admittedly – formal sense the civilian legislations do not consider “subrogation” as a remedy for overcoming unjust enrichment.

This fact is supported by more substantive arguments. The codes do not tell us why derivative recourse is granted. The civil law authors dealing with the equivalent rules to subrogation, and the courts applying these rules, have not been so reluctant as to state a view on the justification. On the contrary, divergent views as to the justification have been offered. The prevailing views have not taken any unjustified-enrichment related argument into account. Only few mention a possible relationship.

Of the commentators, e.g., on the current German law, there is not one to advocate an enrichment analysis of §774 BGB (the German subrogation equivalent). None of the decisions of the courts even mentions it. And this is so, although there is a huge mass of literature being published on enrichment law, and there are many cases on enrichment issues. Despite the presence of rules, literature, and case law on unjustified enrichment, derivative recourse is not considered to form part of the law of unjust enrichment.

If the structure of the codes, and the substantive explanations of courts and scholars, do not support the view that unjust enrichment is the essence of subrogation - maybe it really is not.

Johann Dieckmann

--- Lionel Smith schrieb am Fr, 4.4.2008:

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.