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.
[...] To start with the notion of fraud, it can be defined as the false representation made knowingly, or without belief in its truth or recklessly careless whether it be true or false[43] by someone on someone else which made the latter pay. Dolus is more than close to this notion has it refers to the idea of a person who makes a false representation however it has to be noted that this person has to know that it is false; the scope of the dolus is therefore more limited that the notion of fraud. [...]
[...] The case Kelly v Solari[24] has established the British solution for the mistake of fact. In this case, the directors of an insurance company had paid the insurance sum to the defendant although the policy had lapsed by reason of non-payment of the premium. The insurance directors pretended then that they had forgotten that the policy had lapsed. The court had to decide whether the plaintiffs really mistakenly paid the defendant. It has been decided that if it was proved that the directors knew the lapse therefore they could not get the money back; whereas if the really mistakenly assumed that they were liable to pay then they were entitled to restitutionary. [...]
[...] The common law position is therefore not clear. defendant has been unjustly enriched at the plaintiff's expense then, affirmation and undue delay aside, the law should automatically allow the plaintiff to avoid the contract and claim restitution.”[44] The common law position is however not so clear so that unjust situations can be left to unremedied situations. As fraud or duress are not recognised as unjust factors, their existence only make the contract void but the plaintiff cannot recover what he paid. [...]
[...] and Cohen, N., ‘Payment of Another's Debt' in International Encyclopedia of Comparative Law (1991 vol. chap 10) MacQueen, H. L., ‘payment of another's debt' in Johnston, D. and Zimmermann, R., Unjustified Enrichment : Key Issues in Comparative Perspective (2002 Cambridge University Press) at 459 Visser, D., ‘Searches for silver bullets : enrichment in three-party situation' in Johnston, D. and Zimmermann, R., Unjustified Enrichment : Key Issues in Comparative Perspective (2002 Cambridge University Press) at 526 Ibid. at 528 GALLO, P., ‘Unjust Enrichment : A comparative Analysis' in (1992) 40 AJCL 456 Ibid. [...]
[...] The plaintiff claimed for the restitution of the first instalments. 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. [...]
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