The change of opinion in the 19th century

The turnabout came only in the 19th century,^[4593] and in the wake of a variety of tendencies to facilitate enrichment actions. The error requirement of the condictio indebiti was relaxed, Savigny's generalized condictio sine causa gained recognition and the naturalis aequitas was emphasized (possibly still under the influence of the enthusiasm displayed by the natural lawyers for Pomponius' famous declaration) as the true basis on which the law of unjustified enrichment rested.

The further one was prepared, however, to take the principle against unjust enrichment, the more anxious one became to protect the reasonable reliance of those who had disposed of what they had received; and such protection appeared to be required, irrespective of whether a species, fungibles or money was involved. If the plaintiffs claim was subject to the precepts of what was fair and equitable, it followed not only that every unjust benefit must be recoverable, but also that the defendant may be held liable only as far as a benefit had in tact accrued to him.^[4594] "Nemincm cum alterius detrimento fieri locupletiorem": the defendant was not to be enriched at the plaintiffs expense; but where he had lost or spent the money, or given away the fungibles, he could hardly be seen to be "enriched". Thus it came to be regarded not only as manifestly equitable, but as inherent in the very nature of "enrichment" liability, that a duty to make restitution existed only in so far as the recipient was (still) enriched.^[4595] The most influential legal writers of the

19th century adopted this view⁴⁰⁸ and so it could not fail to impress the draftsmen of the BGB.⁴⁰⁹ Modem comparative research, as well as historical investigation, demonstrates, however, that there is nothing axiomatic or intrinsically self-evident about the rule expressed in §818IIIBGB."°

the enrichment". This principle, Dawson comments, is enforced "with an unrelieved rigor and disregard of consequences that would be hard to find elsewhere in modern German law" (P-J72).

Gluck, vol. 13, pp. 152 sqq.; Vangerow, Pandekten. § 625, Anm. 3; Windscheid/Kipp, §424, 1.

⁴⁸ "Protokolle", in: Mugdan. vol. II, pp. 1181 sqq.

* Of., in particular, the trenchant criticism by Dawson, (1981) 61 Boston University LR 271 sqq., 306 sq. who, after pointing out that the surviving net gain as the measure of enrichment "had emanated not from some 'most holy' sanctum of the legal order [cf, for instance, the remark by Otto von Gierke, quoted supra, p. 835, note 6] but from the private studios of Pandectist authors", proceeds to argue that the pandectist authors and their followers gave a basic misdirection to the German law of restitution. Their aim "was the promotion of virtue by giving honesty, based on ignorance, both reward and protection". Thus they concentrated attention and concern "on the 'innocent¹ recipients of unjustified gain". Their view, however, is fundamentally flawed and one-sided for "it took no account of the other side in what has for centuries been conceived as a two-sided relation— enrichment acquired at the expense of another.... An encompassing principle of exoneration that ensures against any loss all those who do not know that the gain they derived and acquired at another's expense will have to be restored, therefore seems (to an unsympathetic observer from abroad) to show a basic though well-meaning confusion of thought" (pp. 302, 306, 314).

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The change of opinion in the 19th century

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