1. German law

(a) The general enrichmen t action of the BGB

German legal science, in turn, has taken its lead from Savigny³³⁷ and so the general enrichment claim came to be incorporated, eventually, into the BGB.

Weeramantry J, in Da Costa u. Bank of Ceylon (1970) 72 New Law Reports (Ceylon) 457 at 544 sq. The learned judge strongly criticized the decision inNortje's case (pp. 539 sqq.) and came, as far as Ceylon is concerned, to the opposite conclusion.

³⁴ Cf. the discussion by De Vos, Verrykingsaanspreeklikheid. pp. 153 sqq.

^s De Vos, Verrykingsaanspreeklikheid. pp. 86 sqq. maintains that the actio (utilis) de in rem verso was not recognized by the Roman-Dutch authors and that it is, consequently, also out of use in modern South African law. But see Honore, 1960 Actajuridica 243 sqq., 246

*⁶ As to which Nortje v. Pool 1966 (3) SA 96 (A) at 139H provides the helpful comment that they are admissible "[onder] bepaalde omstandighede". For details cf. De Vos, Verrykingsaanspreeklikheid. pp. 244 sqq. and passim; see also Zimmermann, RHR. PP· 135 sqq.

Cf. supra, pp. 872 sq.

³⁸ The wide term "at the plaintiff's expense" was chosen instead of the narrower "out of the plaintiffs property", which, in turn, can be found in the Swiss Code. The enrichment action may be brought regardless of whether the plaintiff has suffered any provable loss.

But see Dawson, op. cit., note 119, pp. 91 sq.: "The end result was the Code of 1900, which contains the most carefully considered solutions to be found in any modern legislative system." adopt the general action was taken at a comparatively late stage.^[4541] Thorough discussions were devoted only to the condictio indebiti, and many of the rules contained in §§ 813 sqq. BGB were tailored to suit that particular enrichment claim. When the general action was introduced, the consequences of this sweeping change for the remaining sections of that title were not considered.^[4542] Furthermore, the old condictiones were not entirely abandoned. §§ 812 I and 817 I BGB specifically mention enrichment claims ob causam finitam, causa data causa non secuta and ob turpem vel iniustam causam,^[4543] but their function and practical value have remained unclear. The highly sophisticated and perplexing disputes surrounding the application of the "in pari turpitudine" rule, as laid down in § 817, 2 BGB, provide perhaps the most striking example of the practical difficulties that have arisen in this regard.^[4544]

But what has become of the general enrichment action of the BGB over the last nine decades?^{[4545] [4546] [4547] [4548] After the code entered into effect on 1 January 1900, the practical application of § 812 BGB proved to be difficult. "At the expense", "without legal ground": how were these requirements to be interpreted? Several attempts were made to find appropriate guidelines to carve out and establish basic principles upon which all unjustified enrichment claims are to be based.343 None of these theories have, however, managed to gain acceptance. What remained was a somewhat unfortunate picture of the courts pragmat­ically trying to muddle their way through, and of a legal literature unable to give them much help and guidance.}

(b) The Wilburg/von Caemmerer typology

It was Walter Wilburg who in 1934³⁴⁶ acknowledged for the first time that a uniform answer as to when an enrichment is unjustified cannot be given. For whereas it is quite possible to state positively when an enrichment is justified—to wit, when the defendant is entitled, under a contract or by law, to keep the enrichment that he has acquired—the converse does not, apparently, apply. It cannot be maintained that a person who increases his property at the expense of another, without a specific contractual or legal causa, is bound to return the enrichment to this other person.³⁴⁷ Such a proposition would not take into account, for instance, that the enrichment may be due to the display of particular skills in (lawful) competition. Somebody builds a dam and the neighbours, who have refused to participate in the expenses, also benefit from its construction.^[4549] This benefit accrues to them without specific contractual or legal reason; and yet they are not unjustifiedly enriched. Wilburg, and 20 years later especially von Caemmerer, therefore distinguished different types of enrichment claims. Admit­tedly, the fathers of the BGB had undertaken to incorporate a general enrichment action into their codification. However, in drafting § 812 BGB they had emphasized the enrichment by transfer as one of the traditional core examples. Wilburg and von Caemmerer now argued that this accentuation was not only historically but also dogmatically justified. If one wishes to arrive at workable criteria as to when an enrichment is unjustified, one has to separate the claim arising from enrichment by transfer from the claims based on enrichment "in any other manner". The enrichment-by-transfer claim ("Leistungskondik- tion ”) concerns the recovery of performances which have gone awry for some reason or other.