Restitution at the Crossroads A Comparative Study 1st Edition by Thomas Krebs ISBN 1859416462 9781859416464

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ISBN 10: 1859416462 
ISBN 13: 9781859416464
Author: Thomas Krebs

There is no area in which comparative law is more useful than in the area of unjust enrichment. This book examines the anatomy of the subject in England and Germany. This is particularly topical at the moment because German taxonomy seems to be encroaching on English law. The book asks whether that is a good thing, and offers suggestions derived from a study of German law as to how English law might respond to such developments.

The German civil code contains a ‘general clause’ of unjust enrichment, based on the condictio indebiti. It took German law over half a century to develop a taxonomy through which to operate that clause. The first issue in this book warns against the dangers of adopting a similarly broad general cause of action in unjust enrichment in English law. To this end, the book looks at the historical development of the German law of unjust enrichment, and the struggles undergone by German law to find a way to contain such a very wide cause of action.

Having pointed out these dangers, the second focus of this book draws on the German experience in order to see how these dangers can best be avoided. Failing an outright rejection of the condictio indebiti, some changes which English law will have to undergo in order to accommodate the condictio indebiti will have to be identified, always against the background of German law

Restitution at the Crossroads A Comparative Study 1st Table of contents:

Part I: The German Law of Unjustified Enrichment in Context

• Chapter 1: Setting the Scene
  • Introduction to the Law of Restitution
  • The “Unjust Factors” Approach (Common Law) vs. “Absence of Legal Ground/Juristic Reason” Approach (Civil Law)
  • Outline of the Book’s Argument and Structure
  • Brief overview of the “Swaps Saga” (a key case in English restitution law)
  • Mistake of Law and Restitution for Nullity
• Chapter 2: Essential Elements of German Law
  • The Influence of Roman Law on German Restitution
  • A Brief History of the Codification (e.g., the German Civil Code – BGB)
  • Characteristics of the BGB (General Part, cross-references, general clause)
  • The German Law of Contract (relevant provisions, specific performance, “breach,” termination)
  • The German Law of Unjust Enrichment (Roman origins, the general clause, condictio ob rem, the “disenrichment defense” – Wegfall der Bereicherung)
  • Conclusion

Part II: Mistake

• Chapter 3: The Basis of Restitution for Mistake (General Principles)
  • Why do mistakes trigger restitution?
  • Changes of mind and “spent” mistakes
  • Defining “Mistake” (absence of knowledge, doubt, mispredictions)
  • Restrictions on Mistake-Based Restitution (undermining security of receipts, undermining bargains, mistakes of law)
  • Categorizing Mistakes (communication, assumptions, performance)
  • Conclusion
• Chapter 4: Mistake in German Law
  • Mistakes of Law and Fact in German Law
  • The Role of Mistake in German Contract Law (main categories, consequences)
  • Mistaken Gifts

Part III: Other Grounds for Restitution / Worsened Positions

• Chapter 5: Other Grounds for Restitution in English Law
  • Duress
  • Compulsion
  • Necessity
  • Undue Influence
  • Failure of Consideration (Total Failure of Basis)
  • Imposition
• Chapter 6: Other Grounds for Restitution in German Law
  • Performance of a Non-Existent Debt (Condictio Indebiti)
  • Performance of a Moral Duty
  • Performance for an Illegal or Immoral Purpose
  • Performance where the Result is Not Achieved (Condictio Ob Rem / Causa Data Causa Non Secuta)
  • Interventions Without Authority (Geschäftsführung ohne Auftrag – Negotiorum Gestio)
• Chapter 7: Worsening of Position / Change of Position Defence
  • The Change of Position Defence in English Law
  • The Disenrichment Defence (Wegfall der Bereicherung) in German Law
  • Comparative Analysis of the Defences

Part IV: Restitution in Specific Contexts and the Future

• Chapter 8: Restitution for Wrongs
  • Disgorgement of Gains from Wrongs (e.g., breach of contract, torts, breach of fiduciary duty)
  • Relationship between Restitution and Damages
  • Proprietary Restitutionary Remedies (e.g., constructive trusts)
• Chapter 9: Restitution and Contractual Relationships
  • Restitution for Ineffective Contracts (Void, Voidable, Unenforceable)
  • Restitution upon Termination of Contract for Breach
  • Restitution in Quasi-Contractual Settings
• Chapter 10: Conclusion: Restitution at the Crossroads
  • Summary of Key Findings in the Comparative Analysis
  • The Advantages and Disadvantages of “Unjust Factors” vs. “Absence of Legal Ground”
  • Lessons from German Law for English Law (and vice versa)
  • The Future Direction of the Law of Restitution
  • Policy Considerations and Normative Underpinnings

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Tags: Thomas Krebs, Restitution, Crossroads