14 Eur. Rev. Private L. 409 (2006)
Subsidiarity of the Action for Unjustified Enrichment - French Law and Dutch Law: Different Solutions for the Same Problem

handle is hein.kluwer/erpl0014 and id is 409 raw text is: European Review of Private Law 3-2006 [409-421] @ Kluwer Law International I Printed in the Netherlands
Subsidiarity of the Action for Unjustified Enrichment - French
Law and Dutch Law: Different Solutions for the Same Problem*
Abstract: The beauty of the enrichment action is that it offers well-trained lawyers a
useful tool for filling gaps in our legal system. Enrichment actions should only be
grounded on the basis of positive arguments within the system. I will argue that in most
cases where laymen (or judges for that matter) at first sight think that an action based on
unjustified enrichment could and should succeed, the well-trained lawyer would deny
such an action. In most developed legal systems there are specific techniques to make sure
that the legal professional is able to decide which claim must be granted and which claim
must be denied. In this paper the focus is on two specific requirements for the action of
unjustified enrichment: the French principle of subsidiarity and the principle of impov-
erishment as applied in Dutch enrichment law.
In both French and Dutch law the understanding and interpretation of the two
techniques is dependant on the basic assumption about the role of the action for unjusti-
fied enrichment within the legal system. Is it an ultimate remedy for situations which are
not covered by the 'normal' rules of the system or is it an equity device which can alter the
normal application of the rules of the legal system?
1. Unjustified Enrichment Cases
Would the benefit of having 'free' manure on Mr. Patureau's land give rise to an
unjustified enrichment action? The claimant, Mr. Boudier argued he had made the
delivery to the benefit of his contracting party, Mr. Patureau's tenant (who - as it had
turned out - never paid for the delivery).
The French Cour de Cassation ruled in 1892 that the action could be made
and argued:
'the principle of equity (...) does not allow one to enrich oneself at the expense
of another (...) it is sufficient that the plaintiff alleges and proofs to establish
the existence of an advantage which, by a sacrifice or an act, he has conferred
on the other party (...),.1
Was the solicitors' firm right in arguing unjustified enrichment against the Playboy
Club based on the argument that their partner Cass had spent a good fortune paying
of his gambling debts to the club, with money withdrawn from the firm's bank
* I am deeply indebted to Esther Engelhard for her support in the preparation of this paper.
Maastricht University, the Netherlands.
S.1893.1.28 (as cited by BEATSON & SCHRAGE, Cases, Materials and Text on Unjustified
Enrichment, Hart Publishing: Oxford 2003, at p. 38).
Copyright 2007 by Kluwer Law International. All rights reserved.
No claims asserted to original government works

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