Restitution Discussion Group Archives
| Sender: |
Jacques du Plessis |
| Date: |
Mon, 7 Apr 2008 14:21 |
| Re: |
Birksian/sine causa approach to enrichment law |
Thank you Lionel for re-opening the discussion which Charles initiated about how civil law systems apply the "absence of legal ground" requirement in the context of payments of debts for 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)". The words "more properly" presumably suggests that we are not dealing with co-debtors, but rather with cases like suretyship, where the debtor can be regarded as "more properly" liable than the surety. Herewith a belated response from the perspective of uncodified South African civil law, where the surety who pays the creditor has a variety of remedies at his disposal:
1) If he took cession of the obligation towards the creditor, he could sue the debtor on the basis of this obligation. The claim is not based on unjustified enrichment, but on the original obligation. Inasmuch as the term "subrogation" refers to such a cession, it does not deal with unjustified enrichment.
2) If he agreed to be surety in terms of an agreement with the debtor, he could claim reimbursement from the debtor in terms of such an agreement (the actio mandati). The claim for reimbursement is then based on contract.
3) If none of the above situations are at hand, he could still claim reimbursement from the debtor on the basis of negotiorum gestio (inelegantly translated as "managing another's affairs"). Traditionally, this is regarded as a source of obligations distinct from unjustified enrichment, but I can understand that from a common law perspective the difference would not be that significant. The surety who incurred liability contrary to the will of the debtor would not be able to sue the debtor on the ground of negotiorum gestio. It has been suggested, though, that a claim based on unjustified enrichment arises in these circumstances (cf Scholtens 1959 SALJ 266 -271). Where the term "subrogation" is used in this context, it does deal with unjustified enrichment.
So, what does all of this have to do with the “absence of legal ground” requirement? Charles states that:
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. In the situation where the surety pays the creditor, there are two dimensions to the transfer. The first is that the creditor has received a benefit which was due to him. The retention of this benefit by the creditor is supported by a legal ground/basis vis-à-vis both the debtor and the surety. The second dimension is that the debtor was enriched through being released from liability to pay the principal debt. This enrichment is at the expense of the surety, and as between the surety and the debtor, there is no legal ground/basis for this enrichment. I think the problem is that in these three-party cases there is no legal ground "in the abstract" attached to a transfer; one has to ask whether enrichment is without legal ground as between specific parties.
The position regarding rights of recourse among co-sureties (cf Pothier 2 6 7 4) has its own peculiarities; but I suppose that the one co-surety is not "more properly" liable for the debt than the other.
Best wishes
Prof Jacques du Plessis
Faculty of Law / Fakulteit Regsgeleerdheid
-------------------------------------------------------------------------------- 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.
Jacques
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From: Lionel Smith
Sent: 04 April 2008 02:33 AM
Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law
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