The general enrichment action that was
(a) Grotius and Huber
Obviously, then, in the 19th century a general enrichment claim was "in the air" throughout central Europe. But neither the French Court of Cassation nor Savigny was the first to devise and recognize it.
It was Hugo Grotius, who had, in the first half of the 17th century, already drawn together all the different threads and woven them into a single, crisp and comprehensive formula. He saw the different condictiones[4524] and the medieval action against the person whose hunger had been stilled at somebody else's expense;[4525] he noticed that the actio negotiorum gestorum contraria was used, occasionally, as an enrichment claim;[4526] 8 he examined, time and again, the famous lex Si et me et Titium[4527] and he read the restitution doctrine of the late medieval Spanish scholastics.[4528] Above all, however, he was inspired by the precepts of natural justice and equity. "De rebus non extantibus hoc humano generi placuit", he finally concluded,[4529] "ut si tu ex re mea factus es locupletior, me rem non habente, in tantum tenearis, in quantum es factus locupletior."[4530]But was this perhaps to be understood merely as a rule of natural law, rather than one of positive jurisprudence? In his Inleiding tot de Hollandsche Rechtsgeleertkeyd Grotius took the opportunity to answer this question. Obligations, he stated, have their source either in contract or in inequality ("toezegging [ofte] onevenheid").[4531] Obligations arising from inequality are subdivided again into those where the inequality is caused by another person, on the one hand (delict); and where it actually benefits another, or would benefit him, if something were withheld, on the other ("... onevenheid...
die een ander datelick batet, ofte door onthoudinge baten zoude").[4532] Inequality which benefits or might benefit another, Grotius then declared, binds the person who received the benefit to make compensation, without regard to the way in which he came to acquire it.[4533] After these general, introductory remarks he turned to a detailed discussion of the individual obligations, and when he came to those arising from enrichment ("baet-trecking"), he opened the discussion, again, on a very general level: "Verbintenisse door baet-trecking ontstaet, wanneer iemand zonder voorige recht-gunnige baet treckt, ofte zoude komen te trecken, uit eens anders goed."[4534] He then went through the individual condictiones until he wound up by acknowledging a claim for the "weder-eissching van alle't gunt andersins zonder gheven, betalen ofte belooven, aen iemand is gekomen uit eens anders goed buiten rechtelicke oorzake".[4535] It is clear from the context that this is not merely the Roman condictio sine causa (specialis) but enrichment sine causa at somebody else's expense as a general source of obligation.[4536] Ulrich Huber referred to Grotius, when he, too, espoused the idea of a general enrichment action[4537] and, perhaps most importantly, the Hooge Raad van Holland en Zeeland also was quite prepared to grant actiones ex aequitate arising from "baettrekking".[4538](b) South African law
Strangely enough, the modern South African courts have not followed suit. "[T]he rule against enrichment is not one of general application— if it were, all commerce would be stultified": this terse pronouncement of Van den Hee ver J[4539] represents, to this day, the prevailing judicial attitude.[4540] As a result, a principle "vibrant with life and struggling for growth [has been] locked... in tight compartments, a prisoner of the past".333 An odd assortment of individual enrichment actions (to wit, the condictiones indebiti, causa data causa non secuta, ob turpem vel iniustam causam and sine causa, the actiones negotiorum gestorum, the action against persons with limited capacity to act and the one arising from accessio or processing334—though not, apparently, the actio de in rem verso335) is still at hand to clank the ancient chains. Only here and there have some of the remedies been modernized, rather coyly, by means of what is usually referred to as "ad hoc extensions'1.336 The law relating to unjustified enrichment has, as a result, become one of the most awkward and perplexing dungeons within the edifice of South African private law.
IV.
More on the topic The general enrichment action that was:
- The actio negotiorum gestorum (contraria) as enrichment action
- Enrichment by transfer
- Instances of "weak** enrichment liability in Rome
- Indebitum solutum and unjustified enrichment
- The Action
- The Action
- The formula of the action
- Reason Alone Cannot Move Action
- Principles and rules as reasons for action
- A functional approach: Power-conferring rules as reasons for action
- THE MEASURE OF ENRICHMENT LIABILITY
- ENRICHMENT LIABILITY OUTSIDE THE CONDICTIONES
- ENRICHMENT REMEDIES IN MODERN LAW
- PART VII Unjustified Enrichment
- A Transcendental Reply Considered (that yes, reason alone can move action)
- 1. The "weakness" of enrichment claims in German law
- 9. Transforming the Farm Safety Net Through Legislative Action