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Property, Subsidiarity, and Unjust Enrichment(2) |
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III. Subsidiarity
This section will be concerned to lay out a brief comparative overview of some different kinds of subsidiarity applicable to unjustified enrichment claims in different systems. In the next section, an attempt will be made to understand the phenomenon of subsidiarity. It is, however, necessary to begin with definition and differentiation, because subsidiarity is a concept with different meanings. One understanding of it is as a kind of opposite to concurrent liability. On this approach, subsidiarity is a relationship between different types of claims such that one type of claim is disallowed by the presence of another claim.35 If unjustified enrichment were subsidiary in this way to the rei vindicatio, then if the rei vindicatio were available, a claim in unjustified enrichment would not lie even if all of its elements were established. If, on the other hand, the rei vindicatio could not be made out, the claim in unjustified enrichment would be permitted. As we have seen, this appears to be the law of Quebec and of Germany.
Then there is a much stronger idea of subsidiarity, which denies the availability of a claim in unjustified enrichment due to the applicability of some other set of legal principles, even if, according to those principles, no claim will lie. An example will serve. Assume that an occupier of land, who is not the owner, has made improvements to the land. If a codified system has a set of provisions which deal specifically with such improvements, and if, according to those provisions, the occupier has no claim, then a court would probably also deny a claim based on a general principle against unjustified enrichment.36 The important point to notice is that here, the plaintiff has no claim at all. Weak subsidiarity, as discussed in the previous paragraph, only directs a plaintiff to the correct claim; strong subsidiarity can deny the plaintiff any claim. It can also be said that while weak subsidiarity is a relationship between claims, strong subsidiarity is better understood as a relationship between legal dispositions or sets of rules.
It will be argued below that each of the systems under consideration makes unjustified enrichment strongly subsidiary in some circumstances. It would be possible for a system to make unjustified enrichment claims weakly subsidiary to all other claims, and indeed it appears that this is the law of Quebec. It would not, however, make sense for a system to make unjust enrichment strongly subsidiary to all other rules of law. The effect would be that there could never be a claim in unjustified enrichment.37 This can be illustrated by a recent French case, in which the plaintiff sought recourse by an action of guarantee as well as an action de in rem verso.38 The action of guarantee was rejected since no fault was shown on the part of the defendant, but the claim in unjustified enrichment was allowed. The defendant appealed on the ground that this ignored its subsidiary character, but the Cour de cassation rejected the appeal. One might view the decision as an occasion for dispensing entirely with subsidiarity;39 but it can be understood more narrowly, as holding that there was no strong subsidiarity between the action of guarantee and the action in unjustified enrichment. In that light, it does not touch the possibility of a general weak subsidiarity, nor the need for strong subsidiarity in some cases.40
1. Strong Subsidiarity
The first step will be to examine strong subsidiarity. That is, in what circumstances do other legal regimes exclude the possibility of a claim in unjustified enrichment, even where the elements of the claim are present, and even where the plaintiff has no other claim against the enriched defendant?
(a) Excluding Claims due to the Relationship Between Plaintiff and Defendant
Strong subsidiarity often operates based on the legal relationship between the plaintiff and the defendant. There are a number of examples.
(i) Illegal, Void or Unenforceable Transactions
Consider the case where some statutory provision comes into play to deny the plaintiff a right which it would otherwise have. Take the case of an illegal contract under which the plaintiff has conferred a benefit upon the defendant. A rule of law operates to take away the plaintiff's ability to sue for contractual performance; can the plaintiff nonetheless sue in unjustified enrichment to recover the benefit it has conferred? All legal systems have struggled with this question.41 It can also arise where the contract is made merely unenforceable or void, rather than illegal. It is a question of trying to determine the intention of the legislator; would allowing the enrichment claim subvert the goals of the rule which made the contract illegal or unenforceable?42 It is clear that in any system, an unjust enrichment claim must be excluded by any legislative provision which implicitly denies it.
(ii) Different Types of Unjustified Enrichment Claims
The same reasoning can apply to the case in which a system provides more than one type of claim for unjustified enrichment. It might be that a plaintiff will not be allowed a free choice among them, even where the facts of the case satisfy more than one claim. Such a doctrinal rule could be justified where a general unjustified enrichment claim is provided along with other unjustified enrichment claims which apply only to particular fact patterns. For example, in Quebec there is a general enrichment action and also the action for réception de l'indu. It was held, under the Civil Code of Lower Canada, that the general claim is not appropriate where the facts fit the claim for réception de l'indu, even though the latter claim could not succeed.43 Another example is provided by artt. 955 ff, which govern the position relating to a landowner's obligation to pay for improvements to land; there is no room for the general enrichment action where these provisions are apt to decide the case, even if no claim lies under them.44 Similarly, in German law the provisions governing the "owner-possessor relationship" expressly exclude any other enrichment remedy on facts within that relationship.45 In both of these systems, where a plaintiff can claim his expenses for managing the business of another, unjustified enrichment is excluded.46 This kind of subsidiarity does not seem to be relevant in the common law system, which does not have a general enrichment claim alongside more specific ones.47
(iii) Unjustified Enrichment and Contracts
Unjustified enrichment claims are not allowed where the matter in issue is dealt with by a subsisting contract between the parties. In that case, it is said, the contract governs, and only if it can be disposed of in some way is a claim in unjustified enrichment available.48 We might initially think of this as an example of weak subsidiarity, on the view that rights in unjust enrichment are subsidiary to the parties' contractual rights. On a closer examination, however, it appears that the governing principle is strong subsidiarity.
We cannot say that claims in unjustified enrichment are subsidiary to claims in breach of contract, because, in all of the systems under consideration, such claims are alternatives. If a contract is cancelled for breach (and conceptualisations of "cancelled" vary in different systems), the non-breaching party is allowed to choose to recover the benefits it conferred, as an alternative to seeking damages valued by performance. A system may view this claim to recover benefits as a contractual one, or as founded on unjustified enrichment.49 The claim is not one which can be understood as enforcing any contractual promise, and it is arguable that wherever the claim may appear in a civil code, its function is to prevent unjustified enrichment.50
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