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§ 2. The English right

As Lord Diplok (Diplock) in the decision on business Orakpo v Manson Investments Ltd in 1978 has noted, «in the English right there is no general doctrine неосновательного291 enrichments.

That it does, so it gives special legal protection frames in concrete cases which in the legal systems based on the civil (civil) right, can be classified as unjust enrichment cases» 292.

By XVII century in England there were some claim forms, i.e. Standardly formulated requirements of the claimant used, including, for cases of unjust enrichment from the point of view of legal systems of the continental legal system. These claim forms included the following: the action in account; the action of assumpsit; the action for money had and received by the defendant to the use of the claimant; the action for money paid to the use of defendant; quantum valebat to recover the reasonable value of goods which has been transferred to the defendant; quantum meruit to recover the reasonable value of services which the defendant has received from the claimant; the claim forms generated in the equity law, for example, account of profit, equitable charge, subrogation, constructive trust.

291 According to the word usage which has developed in the English legal doctrine (though and being till now a subject of discussions) to concept "unjust enrichment" (ungerechtfertigte Bereicherung), used in the Russian and German right, there corresponds English concept «unfair enrichment» (unjust enrichment). For convenience we will use the term "unjust enrichment", however its convention in the given context should not be lost sight.

292 V. The Principles of the Law of Restitution. 2nd ed. Oxford University Press, 2006. P. 57.

First three of the specified claims were applied in case of payment undue to the respondent, the fourth – in case of payment undue to the third party in favour of the respondent, the fifth and the sixth – to cases of undue conveyance of property or undue rendering of services, claims for the equity law – in various случаях293.

Besides, that the specified claim forms were applied also as contractual protection frames, neither courts, nor the doctrine till the end of XIX century did not consider them as having in the basis any uniform principle and did not try to explain their use by any theoretical design.

It is necessary to notice, that claim forms by means of which indemnification of cost of superficially received goods and services (in particular, quantum valebat was collected and quantum meruit), demanded inquiry presence about reception of corresponding values from the party обогатившегося294.

Result of the first attempt of judgement of a generality of the specified claims was the design kvazidogovora and its form – meant договор295. At the heart of a design kvazidogovora in the English right rimsko-legal ideas about classification of obligations by the occurrence bases on contractual, delictual, kvazidogovornye and kvazideliktnye, and, secondly, development of the claim form the action of assumpsit laid, first.

Originally one of use preconditions the action of assumpsit was expressed the consent of the respondent to pay a debt to the claimant (assumpsit – «he promised»), however subsequently such consent became meant, and then – фиктивным296.

293 In this occasion in detail see: V. Op. cit. P. 20; Peter Birks. Unjust Enrichment. 2nd ed., Oxford University Press, 2005. P. 285; Palmer G.E. History of Restitution in Anglo-Amerisan Law//International Encyclopaedia of Comparative Law. X. Restitution – Unjust Enrichment and Negotiorum Gestio. Ch 3 Tübingen, 1989. P. 3; TSvajgert K, Ketts H.Vvedenie in comparative jurisprudence in private law sphere. T. 2. M. With. 304.

294 Lodder A. Op. cit. P. 78, 153–154.

295 First attempt of similar generalisation was undertaken in 1760 by Lord Mansfild (Mansfield) in the decision on business

Moses v Macferlan and other further decisions, – see: Palmer G.E. Op. cit. P. 11, however, the theory has received a wide circulation only in XIX century

296 Martinek M. Der Weg des Common Law zur allgemeinen Bereicherungsklage: Ein später Sieg des Pomponius? RabelsZ 47, 1983. S. 289. As it was marked in the known decision of the House of Lords on business Sinclair v Brougham (1914

), «when it is a question of claims from kvazidogovorov the class of claims means, in the theory based on the contract,

Created by fiction of the right ».

As a result of the numerous contradictions arising at application of the specified theory on практике297, in the middle of the XX-th century by authoritative scientists and judges opinions on necessity of refusal of designs kvazidogovora and meant договора298 began to be expressed. Alternatively in 1966 Lord Robert Goffom (Goff) and professor Garetom Johns (Jones) use of a principle of inadmissibility of unjust enrichment (the principle of unjust enrichment) 299 was offered. And only in 1991 the House of Lords in the decision on business Lipkin Gorman (a firm) v Karpnale Ltd established presence of the right of the restitution (the Law of Restitution) as the independent area of the right based on a principle of unjust enrichment (unjust enrichment) 300,301.

According to dominating now in the English doctrine позиции302 the right to the restitution from unjust enrichment arises from the legal structure including following facts:

– Reception by the respondent of enrichment (benefit);

– An origin of this enrichment (benefit) at the expense of the claimant;

– Injustice of enrichment (presence of the factor attracting qualification of enrichment as returnable).

297 Some positions of criticism of the given theory are stated at TSvajgert K, Ketts to H.Ukaz. soch. With. 305.

298 Palmer G.E. Op. cit. P. 15.

299 As marked R.Goff and G.Johns, «the restitution right is the right concerning all requirements … based on principle of unjust enrichment (unjust enrichment)» – see: V. Op. cit. P. 6.

300 Ibid. P. 7.

301 Substantial filling of the right of the restitution is disputable in the English legal doctrine. Unlike R.Goffa and G.Johns specified above a position which have found expression in the specified decision of the House of Lords,

A number of authoritative scientists supports necessity of internal division of the right of the restitution on three and more groups of the claims leaning against different principles. According to P.Birksa (Birks), the restitution is the general concept for all requirements directed on collecting received respondent. The right to the restitution can arise both from the fact of unfair enrichment, and from the contract, an offence, conducting chuzhyh affairs without

The commission and other juridical facts (Birks P. Op. cit. P. 11-19.). As marks G.Virgo (Virgo), at the heart of the right

On the restitution from unjust enrichment the principle of inadmissibility of unfair enrichment, whereas at the heart of the restitution from an offence – a principle of inadmissibility of enrichment of the offender owing to an offence, and at the heart of the restitution on protection of real rights – a principle of inadmissibility of infringement of real rights (Virgo G lays. Op. cit. P. 6–17).

302 it is necessary to notice, that to the present of times considerable number of the questions, obligations arising from unjust enrichment concerning to area in the English right, continues to remain a subject of hot discussions

Experts. In this connection all further generalisations and references to a position occupied with dominating opinion, will have conditional character in a certain measure.

As the fourth fact which is coming under to an establishment, usually consider presence of statements of defence which can weaken the made demand. To such objections, in particular, carry objection about loss обогащения303.

Let's consider, that admits the English right enrichment or benefit reception.

According to a position traditional for the English right enrichment of the person can form reception of any values (blessings) having monetary cost. So, making a start from a case of reception of undue payment, P.Birks (Birks) wrote, that enrichment are the acquisitions, able to be expressed in money. The recognition enrichment of reception of other objects was denied by P.Birksom referring to impossibility of the monetary restitution in such случаях304. As marks G.Virgo, the intrinsic characteristic of enrichment is possibility of its measurement in money as a subject of the requirement of the claimant is monetary cost of the enrichment received by the respondent. Thus speech does not go necessarily about an exchange value, there is enough and consumer cost, as in a case «pure services» 305.

Last years is extended also other approach, it is possible to carry R.Chemberza to number of which basic supporters (Chambers) and E.Loddera (Lodder).

So, R.Chemberz specifies, that, «with rare exception, everything can be enrichment, that can be transferred superficially or wrongfully and then is returned, without dependence from, whether has it cost or not» 306. Thus he suggests to allocate two kinds of enrichment: the value expressed in

303 Birks P. Op. cit. P. 39–40; Virgo G. Op. cit. P. 9; Cases and Materials on the Law of Restitution. Andrew Burrows, Ewan McKendrick, James Edelman. Oxford University Press, 2007 p. 71; Burrows A. The Law of Restitution. 3d edition, Oxford University Press, 2011, p. 27; Goff R. and Jones G. The Law of Restitution, 7th edition, Sweet AND Maxwell, 2007.

P. 16; Lodder A. Op. cit. P. 6.

304 Birks P. Op. cit. P. 51–52.

305 Virgo G. Op. cit. P. 64. G.Virgo understands services as a result of which rendering there is no change in property sphere of the addressee As «pure services».

306 Chambers R. Two Kinds of Enrichment//Philosophical Foundations of the Law of Unjust Enrichment. P. 243.

To the monetary form (monetary value), and the transferred rights. Whereas in most cases unjust enrichment the English right deals with indemnification of cost of enrichment, in some cases it supposes also the restitution in натуре307. For example, at contest of the contract of purchase of the car the seller returns itself the right of possession автомобилем308. Thus, according to R.Chemberza, obligation occurrence on return

Unjust enrichment can be connected with reception both monetary value, and the right. Thus depending on a kind of enrichment to return comes under either a corresponding sum of money, or the acquired right. At impossibility of return of originally received object speech about granting of alternative object (for example, about replacement of return of the right with monetary indemnification) to go not может309.

E.Lodder the same as also R.Chemberz, suggests to allocate enrichment in the form of reception of the value expressed in the monetary form (called by it

«Actual enrichment»), and enrichment in the form of changes in the legal relations which have come as a result of buying or clearing of a duty (called «legal enrichment»). The Same event (for example, buying of the property the car) can involve reception both legal, and actual enrichment. Depending on an enrichment kind, according to E.Loddera, sustained it is given or the requirement about indemnifications of cost of the received actual enrichment, or the right to return legal обогащения310.

As concrete examples of the values, able to form enrichment of the person, English authors mention the following.

G.Virgo specifies, that enrichment can arise from reception of various benefits, the basic of which following: money, property, services,

307 As basic such cases the author names contract contest, error correction in the contract (rectification) and a trust.

308 Ibid. P. 256.

309 Ibid. P. 268.

310 Lodder A. Op. cit. P. 1–2, 41–43.

136

Clearing of a duty. G.Virgo's services subdivides into two kinds: having an end result (for example, the car repairs increasing its cost) and not having that («pure services», for example, training). In case of the services having an end result, in particular, in the form of increase of cost of property of the respondent, as the enrichment which are coming under to indemnification, G.Virgo suggests to consider such result (increase in cost of property). Repayment of another's debt of G.Virgo considers as the separate form not the monetary enrichment, close to

услугам311.

As marked R.Goff and G.Johns, besides money, services, the goods and the real estate there are also many other benefits recognised as enrichment English судами312. Repayment of another's debt, improvement concern them movable имущества313, favourable use of another's property, the stranger

Confidential информации314, reception of benefit from a trust, savings

Expenses.

As specifies E.Barrouz (Burrows), benefit can be positive or negative. The respondent objectively receives positive benefit when it receives something material, a certain end-product which can be realised for money. Reception of the money, movable and real estate, and also their improvements are examples of positive benefit. Negative objective benefit is constituted by savings of expenses which the respondent could incur reasonably. Examples of it is reception of services, use of another's property and debt repayment by the third лицом315.

311 Virgo G. Op. cit. P. 69–72.

312 Goff R., Jones G. Op. cit. P. 30

313 According to R.Goffa and G.Johns, in case of improvement of a personal estate the size of the received benefit is equal to a difference between the price of property before improvement. However thus the incorporeal right of the victim is limited by its expenses on the made improvements, – see: ibid. P. 246.

314 In particular, the requirement about indemnification in a situation when the respondent used the information belonging to the claimant is supposed, knowing about its confidential character when such information has been received by the respondent

From the claimant, or even the third party. The requirement about indemnification can be directed as on the profit received

The respondent, and on payment of reasonable cost of the used information. See more in detail: ibid. P. 776–787.

315 Burrows A. Op. cit. P. 45.

According to E.Loddera, actual enrichment obrazovyvaet reception of any values having monetary cost, in particular money, the rights, movable and real estate, using property, services (as attracting end-product reception, and is not present), clearing from обязанности316. Concerning enrichment as a result of using property has no value, whether there was such using actually. Possibility of use also constitutes received actual обогащение317.

With reference to actual enrichment as a result of reception of a personal estate (goods) of E.Lodder pays attention to necessity of differentiation of the size of enrichment depending on what right to the received goods has arisen at the respondent, and also from, whether possession of the given goods is received. In case of simultaneous reception of the property right and possession the size of enrichment is constituted by market cost of the goods. If the enriched receives only the right of possession, its cost and should be accepted in внимание318.

Legal enrichment, according to E.Loddera, can arise from reception of any rights and clearing from обязанности319. Thus, as follows from reasonings of the author, the concept of the right used by it is wider than the similar concept accepted in continental праве320.

316 Lodder A. Op. cit. P. 46, 69–104.

317 Ibid. P. 95–96. As an example, E.Lodder refers to business Dimond v Lovell (2002) in which the seller against the buyer had been submitted the recovery suit of cost of using by the property got by last under the void contract of purchase of the car by instalments. Though the House of Lords also has given up in the claim referring to its inadmissibility owing to the contradiction to the concrete legislative policy which has led

Invalidity of the contract, however, by Lord Hoffmannom (Hoffmann) it has been noticed, that using

The car within 8 days, undoubtedly, was enrichment of the respondent.

318 Ibid. P. 93–95.

319 Ibid. P. 61–62.

320 So, as an unjust enrichment example the right E.Lodder refers to business Cressman v Coys of Kensington (Sales) Ltd ([2004] in which the person superficially has acquired the right (title) to the rare automobile

Number. As it will be shown in the subsequent paragraph of the present work devoted to Principles of the right

The unjust enrichment, the given case has been qualified by authors of Principles as a case of reception of the blessing which are not in strict sense of a word by the right.

From the point of view of practice of English vessels, indemnification in cases of reception of services was collected by vessels without dependence from, whether attracted reception of service savings of necessary expenses, and also from, whether the result of rendering of services final продуктом321 was expressed. With reference to definition of the size of enrichment in cases of reception of services the position dominating in judiciary practice tends to necessity of an establishment of market cost of the services received by the respondent though separate courts expressed as for the wide judicial discretion on the given question, and for acceptance as defining criterion the size of expenses of the claimant on rendering of data услуг322. In cases of superficial reception of the goods their cost is collected. In the decision on business BP Exploration v Hunt R.Goff has noticed, that the basic disciplinary measures at the restitution is reasonable cost of execution of the claimant: In case of rendering of services – quantum meruit or reasonable compensation, in case of goods transfer – quantum valebat or the reasonable price. As a rule, the reasonable price is market cost товара323.

In spite of the fact that, basically, reception of any of the specified values can form enrichment, according to a position dominating in the English right with reference to cases of enrichment by the blessings having monetary cost (named by E.Lodderom cases of "actual enrichment»), not any reception of such blessing forms enrichment on the party of the concrete addressee (or is more exact, not any reception of such blessing generates the right to indemnification of its cost as the restitution). The given circumstance follows from a principle of an individual autonomy or freedom of choice which admits to one of basic principles of English права324. According to the given principle a duty to compensate cost of the received benefit, and equally monetary estimation of the benefit received by the person for the purposes restitutsionnogo requirements, should not break freedom of choice of the person on

321 Ibid. P. 87.

322 Ibid. P. 80–81.

323 Ibid. P. 90.

324 Birks P. Op. cit. P. 55; Virgo G. Op. cit. P. 68; Lodder A. Op. cit. P. 151.

To the order the resources. As Lord Nicholls (Nicholls) in the decision on business Sempra Metals Ltd v IRC has specified, defining value for the restitution has, whether the concrete respondent was enriched and, if yes, in what degree. For the concrete respondent value of the received blessing not always is equal to its market cost. In similar cases would do an injustice to consider the respondent from a position of value which the received blessing has for others лиц325. Thus, to a question on the mechanism of maintenance of an autonomy of will of the enriched person in the English right essential significance is attached.

The conventional decision of the given problem, however, till now it is not developed. Two basic competing theories to protect freedom of choice of the addressee of the blessing, the theory of a choice and the theory subjective обесценивания326 are called. According to one authors, reception of the blessings not being money, basically, is not enrichment, except for a number of cases when the person should be considered enriched, first of all, when the person has agreed on their reception. According to others, the person who has received such blessing is considered enriched, but it has the right to prove, that the received blessings have for it no value, or their value below their market cost. The victim, in turn, has the right to confute objections enriched on the basis of a number of circumstances.

P.Birks classified enrichment cases on reception of money and reception of other objects (in particular, things and services). According to the author, the basic principle of the English right consists that the benefits which are not money, cannot be estimated for the right of the restitution except for cases when such estimation does not break an autonomy of will of the enriched. The cores (though and not unique) P.Birsk's such cases named the following: possibility to return the received property in nature; nerealizatsija possibilities to refuse benefit reception; cases

325 Sempra Metals Ltd v IRC [2007] UKHL 34, – it is resulted on: Burrows A. Op. cit. P. 44.

326 Lodder A. Op. cit. P. 151–152.

140

Receptions of conclusive benefit (sberezheny the necessary expenses, the received value it is actually realised by the addressee for money) 327.

Considering benefits, whose reception attracts unjust enrichment, R.Goff and G.Johns specified, that if reception of money forms enrichment in all cases reception of services and the goods constitutes enrichment only when they have been enquired by the addressee, or the addressee has not declared objection to the supplier against rendering of services or transfer of the goods when he saw, that they are given, thus, that it was reasonably possible to assume, that the supplier does not give them безвозмездно328. Besides, R.Goff and G.Johns noticed, that after other laws and orders the English right began to recognise cases of conclusive benefit – the person is considered enriched if from the point of view of the reasonable person sberezheny expenses which inevitably should be suffered, or it is received able to be realised financial выгода329.

G.Virgo suggests to identify enrichment by means of two tests: objective and subjective. From the point of view of the objective test, enrichment is present, if any reasonable person is hypothetically ready to pay for the benefit received by the respondent. From the point of view of the subjective test, the received benefit can have for the respondent value, smaller, than for usual reasonable people, or not have at all, in particular, because people estimate things according to their personal tastes and предпочтениям330. G.Virgo specifies, that initially it is necessary to be guided by the objective test and to give possibility to the claimant to refer to objective enrichment of the respondent, having given to the last the right to object to the requirement from positions of the subjective test. The position the author

Bases on following arguments. First, to demand from the claimant initially to prove subjective value of enrichment for the respondent unreasonably and

327 Birks P. Op. cit. P. 55–62.

328 Goff R., Jones G. Op. cit. P. 17–20, 29.

329 Ibid. P. 24.

Inconveniently. Secondly, the subjective test has found reflexion in judiciary practice in the form of promotion by the respondent of corresponding objection against the requirement of the claimant based on the objective test. Thirdly, enrichment estimation of cost is usually spent on the basis of the objective test that it is reasonable to extend and to a technique of an establishment of the fact обогащения331. Enrichment from positions of the objective test can have various forms: it can be positive when the respondent receives property or benefits from the services, increasing cost of its property, or negative when the respondent saves up expenses which would be inevitably suffered in the absence of enrichment event. When the claimant specifies in objective enrichment of the respondent, and last contrasts with the requirement objection about

Subjective depreciation, the claimant can confute the put forward objection by means of concepts of the contract implied in fact, conclusive benefit and voluntary принятия332.

Similarly and E.Barrouz suggests to establish benefit presence at first from a position of the objective approach, and then to consider statement of defence about subjective обесценивании333. Thus subjective depreciation can be denied referring to a number of circumstances, such as presence of the conclusive benefit, previous inquiry of value, deduction of the received property, loss обогащения334.

According to E.Loddera, a necessary condition of a recognition of the addressee of value enriched in cases of actual enrichment (i.e. enrichments as a result of reception of the blessing having monetary cost) is or a choice the addressee of the corresponding blessing, or presence of conclusive benefit. The author underlines, that the concept of a choice of the blessing has objective character. A choice of the blessing of E.Lodder recognises nerealizatsiju as the addressee of possibility to refuse its reception under circumstances, objectively

331 Ibid. P. 64–65.

332 Ibid. P. 74.

333 Burrows A. Op. cit. P. 61.

Testifying about vozmezdnosti receptions. Special cases of a choice the author considers a case of inquiry of value as the addressee, a case of refusal of return of the value which are easily giving in to return, and also a case of voluntary acceptance ценности335. Thus, according to the author, the onus of proving of that the received value has not been chosen by the respondent, lays on the respondent: at non-presentation by the respondent of corresponding proofs of the fact of objective reception of value it is enough for ascertaining of the fact of enrichment (though at occurrence of dispute concerning the given circumstance the claimant also should prove presence of a choice of value by the respondent) 336.

As follows from the aforesaid, for an enrichment establishment on the party of the addressee of value English scientists in this or that form suggest to use concepts of conclusive benefit, inquiry, voluntary acceptance of benefit. We will consider the given concepts more in detail.

The majority of experts admits, that in certain cases not monetary benefit received by the person can form enrichment of the person irrespective of the fact of a choice it of corresponding value and its subjective preferences as negation of obvious value of the received benefit is unreasonable. As specifies G.Virgo, the concept of conclusive benefit defines the circumstances giving the bases for a presumption that the respondent would not refuse the received benefits if it had a possibility выбора337. The given concept was recognised in practice English and

Canadian судов338.

Conclusive benefit considers reception of money and similar to them from the point of view of liquidity of objects (for example, deposits, actions and some exchange goods easily converted in money) 339. Other recognised case of conclusive benefit realisation of not monetary benefit also is considered in

335 Lodder A. Op. cit. P. 151, 167–173.

336 Ibid. P. 172–173.

337 Virgo G. Op. cit. P.74.

338 references at Lodder A See. Op. cit. P. 183.

The monetary form, in particular, by means of sale of corresponding object in which such not monetary benefit is concluded. Thus, if, according to P.Birksu (and G.Virgo's similar position), conclusive benefit is available when enriched actually realised received not monetary ценность340, that, according to R.Goffa and G.Johns, is enough already only the possibility of such realisation provided that taking into account a reasonable estimation of circumstances has put to the respondent comes under to realise received выгоду341. According to E.Barrouza's position the recognition of benefit conclusive is possible and in that case when, in opinion of court, the respondent realises similar benefit with reasonable вероятностью342. One more case of conclusive benefit are the savings actually or legally necessary расходов343. Necessity in this case should not be understood as absolute inevitability, enough, that from the reasonable point of view corresponding expenses should be понесены344.

Thus it is possible to allocate two general approaches to the concept of conclusive benefit. According to the first approach the fact of reception of conclusive benefit excludes possibility of application by the respondent of objection about subjective depreciation of the received benefit. According to the second the fact of reception of conclusive benefit establishes only strong, but nevertheless the disputable presumption. As a worthy example supporters of the second approach result the following situation: one person repairs the car of another which, in turn, sells it at the raised cost. It is thus found out, that the former proprietor of the car in the same way would repair the car, thus for smaller cost. For similar unusual cases supporters of the first approach offer

340 Birks P. Op. cit. P. 61; Virgo G. Op. cit. P. 81.

341 Goff R., Jones G. Op. cit. P. 25.

342 Burrows A. Op. cit. P. 49.

343 Ibid. P. 49; Birks P. Op. cit. P. 59; Virgo G. Op. cit. P. 75-76; Lodder A. Op. cit. P. 184–186.

344 Birks P. Op. cit. P. 60.

Broad to use objection about enrichment loss, having extended it on cases of primary non receipt обогащения345.

According to the concept of voluntary acceptance the person who has voluntary accepted the certain blessing, understanding, that it is not given as gift, and having possibility to refuse its acceptance, cannot object kondiktsionnogo to the requirement referring to that the received blessing has for it no value. At the heart of it lays, in particular, the idea that in similar situations freedom of choice of the addressee is not broken by a duty to compensate cost of the received: not having refused reception, the person has agreed with it and, thus, has made the выбор346. If the addressee of the blessing had no actual possibility to refuse its acceptance, the concept not применяется347. Disputable there is a question, whether should concrete enriched to understand vozmezdnost carried out granting, or there is enough, that vozmezdnost was obvious from a position reasonable человека348. As one of the most authoritative opponents of the concept of voluntary acceptance has acted E. Barrouz. In its opinion, the fact of voluntary acceptance can mean only that the addressee of the blessing concerns its reception is indifferent. Restriction of possibility of subjective depreciation in situations of voluntary acceptance would mean, according to E.Barrouza, infringement of a principle of freedom выбора349. Instead of this E.Barrouz suggested to be guided by the facts testifying to obvious desire enriched to receive corresponding blessing. As similar alternative concepts of inquiry, the requirement and capture have been offered.

Some scientists suggest to attach special significance to inquiry or the blessing requirement, and also its capture. As marks E.Barrouz, inquiry presence about reception of the blessing from the enriched means, that its freedom of choice

345 Burrows A. Op. cit. P. 50–51.

346 Birks P. Op. cit. P. 56-57; Virgo G. Op. cit. P 82.

347 Ibid. P. 85.

348 See: Ibid. P. 85–86; Lodder A. Op. cit. P. 169–170.

349 Burrows A. The Law of Restitution. 2nd edition, Butterworths, 2002, P. 21. In the newest edition of the textbook the given author has more softly responded about the concept of voluntary acceptance, – see: Burrows A. Op. cit. P. 59.

It is not broken by a duty to compensate cost of the received. The inquiry shows, that enriched recognises value of the received blessing and wished its reception. There is enough both direct, and indirect, meant inquiry. Disputable character is carried, however, by situations when the inquiry expressed readiness of the addressee to pay the blessing under the price below market cost or assumed gratuitousness of its reception. According to E.Barrouza, possibility of reduction of the size restitutsionnogo requirements on the basis of objection about the subjective under such circumstances is not excluded

обесценивании350. According to E.Loddera, kondiktsionnoe the requirement in it

Case is absent, as the blessing choice was not accompanied by the direct or indirect consent with its duty оплаты351.

From situations of inquiry of E.Barrouz suggested to distinguish cases when the addressee of the blessing though expressed obvious desire and aspiration to possess it, however was not going to pay for it, as, for example, at intended use of another's property without the permission. In similar cases the objection about absence of value of the received blessing can be taken into consideration for only reduction of cost полученного352.

Can matter and refusal of the addressee of the blessing of its voluntary return. As wrote P.Birks, in case of superficial reception of specific property and its finding at the addressee, enriched cannot object to the requirement about indemnification of its cost if he refuses to return thus it in nature. Freedom of choice here too is not broken, as the addressee chooses deduction received имущества353. A similar position as E.Lodder was specified, adheres also.

350 Ibid. P. 52.

351 Lodder A. Op. cit. P. 157, 175.

352 Burrows A. Op. cit. P. 56.

353 Birks P. Op. cit. P. 56.

According to G.Virgo, the given case is a special case conclusive выгоды354.

In the English right the unjust enrichment fact generates the right to the restitution. The question on possible kinds of the granted right (and also its subject) is the extremely debatable in the English doctrine. One authors suppose occurrence both obligations, and real right on the restitution, others limit considered area only to liability laws.

According to P.Birska, sustained always has a liability law on the restitution, and in some cases also in addition and real right, including, and on forming enrichment объект355,356. The Liability law on the restitution is, first of all, the right to reception from the respondent of monetary cost of enrichment. As a unique exception of P.Birks's this rule names a subrogation case when the victim realises in litigation the incorporeal right of the legal owner against the third party – unfairly enriched, thus, that the legal owner is obliged to refrain from creation of obstacles потерпевшему357,358. On the contrary, when as a result of unjust enrichment there is a real right of the victim, the restitution in nature (specific restitution), as a rule, is possible.

354 Virgo G. Op. cit. P. 77.

355 Birks P. Op cit. P. 164. Some pages after P.Birks are reserved, that nevertheless there are separate exceptions when the obligations requirement about indemnification of cost of enrichment is not supposed. However

It expresses confidence, that such separate cases should disappear shortly and consequently any unfair enrichment should grant the right to monetary indemnification.

356 Speaking about a dichotomy obligations and real rights in the English right, P.Birks used concepts “rights in personam” and “rights in rem”, Certainly, to speak about obligations and real rights primenitelno

To the English right follows with a certain share of convention, considering that similar classification

It is inherent first of all in the continental law. Nevertheless, the separate criteria underlying of this classification, in particular, following behind object and a priority at bankruptcy, can be used with reference to kategorizatsii the rights and in the English right.

357 it is the Most frequent subrogation cases arise after payment by the insurer of insurance indemnity to the victim from the tort and the reference with the claim to prichinitelju harm.

358 Ibid. P. 169–171. As specifies P.Birsk, there are opinions, that such cases nevertheless exist. However, on

To its opinion, all a case should be qualified others as cases of occurrence of real right, in particular, a trust.

As marked R.Chemberz, by the English right any right to the restitution of specific property (in its terminology – the transferred rights) is a real right (right in rem) though as the author underlines, the given position is not based neither on the logician, nor on any special reasons of justice, and the recognition of existence of the liability laws mediating return such имущества359 theoretically could be quite admissible.

According to G.Virgo, restitutsionnoe the requirement from unjust enrichment always has obligations character and is directed on reclamation of monetary cost received обогащения360. When the requirement of the claimant to the respondent has character of protection of cash real right (the existing earlier or arisen property existing earlier after reception by the respondent), the similar requirement is not the requirement from unjust enrichment, and concerns to real праву361.

As writes E.Lodder, the kind of the right to the restitution depends on a kind of enrichment of the respondent. If enrichment of the respondent constitutes reception of monetary value (reception of the object having monetary cost), the right to the restitution is expressed in the obligations requirement about payment to the claimant corresponding monetary суммы362. If enrichment constitutes reception of the right or clearing of the legal obligation (legal enrichment), the right to the restitution (in nature) is special sekundarnoe the right, which realisation or generates resulting trust, or cancels the transaction (rescission), or makes certain changes to legal relation (rectification), or makes the subrogation. The author underlines, that is far not in all cases of legal enrichment there is a right to the restitution the specified

In the ways. The decision of this question remains to the discretion of the legislator and vessels and

359 Chambers R. Op. cit. P. 257.

360 Virgo G. Op. cit. P. 64.

361 Ibid. P. 569, 636.

362 Lodder A. Op. cit. P. 64.

Is in dependence from the decision of many other questions in other areas of the right, including contractual and вещного363.

In 1996 the House of Lords in the decision on business Westdeutsche Landesbank Girozentrale v Islingron LBC has specified, that the claimant on demand about return of the execution which have been carried out under the insignificant contract, has no real rights concerning the executed. This decision, and also opinion of some scientists, have led to that the current tendency of the English right considers an exception of consequences of unfair enrichment of occurrence at the victim of real rights. P.Birks critically estimated the given tendency and marked necessity of granting of real rights to the victim in

Defined случаях364. It is necessary to note, what not all English courts

Have followed the specified position of the House of Lords. In particular, in business Re Farepak Good and Gifts Limited [2007 365 erroneous payment to the company-bankrupt has been recognised by court the basis for occurrence of the right of a trust of the payer concerning the paid money resources.

Essential value for the question decision about restitutsionnoj responsibility in the English right has objection about enrichment loss (position change). As it was specified earlier after presence of superficial reception by the respondent of value at the expense of the claimant is established, possibility as objection promotion about position change (enrichment loss) is given to the respondent to grow weak shown restitutsionnoe the requirement.

363 Ibid. P. 64–67.

364 To P.Birks's such cases carried the following: occurrence the right of a trust at the person who have carried out granting at primary absence of the basis, in particular, at execution of the void contract; occurrence of the right of contest of the voidable contract; occurrence of the right of a trust at the person who have carried out granting on the disappeared basis provided that the right of the addressee under the order the received granting was primary ogranichenno the contract; occurrence of the right of a trust or equitable lien concerning the subject received by an initial subject enriched as a result of the order

Enrichments if concerning an initial subject the victim had a real right (Birks P.

Op. cit. P. 180–204).

365 Re Farepak Good and Gifts Limited [2007 2 BCLC 1.

149

The admissibility of the given objection has been recognised for the first time in already mentioned judgement on business Lipkin Gorman (a firm) v Karpnale Ltd (1991). As has noted R.Goff, the given objection is accessible to the person, whose position has changed so, that under all circumstances would do an injustice to demand from it the restitution, or, alternatively, restitutions in full объеме366. The defining characteristic of the given objection is that the respondent is not enriched: though originally the respondent was enriched (or seemed enriched), its enrichment has been lost in communication by expenses, losses and other deterioration of position (including. Having non-material character), kauzalno connected with the fact обогащения367.

Two ideas underlie the given objection. First, the given objection corresponds to strict character restitutsionnoj to responsibility, i.e. To that for occurrence restitutsionnogo the requirement of wine enriched, as a rule, has no value. From the given line restitutsionnoj responsibility follows, that the respondent should not answer in any measure surpassing real increase of its property. Secondly, the given objection guarantees order freedom own property, providing confidence of safety got имущества368.

In spite of the fact that the basic admissibility of objection about enrichment loss is recognised both judiciary practice and the doctrine, its exact bases and borders remain a subject of discussions. In the decision on business Lipkin Gorman (a firm) v Karpnale Ltd R.Goff has specified, that limits of the given objection should be developed further with reference to concrete situations. Accordingly, till now in the given area there is a set not resolved вопросов369.


366 It is resulted on: Burrows A. Op. cit. P. 525.

367 Ibid. P. 526.

368 Birks P. Op. cit. P. 209.

369 Goff R., Jones G. Op. cit. P. 846–847, 852.

150

It is marked, what not all expenses enriched are considered for the given objection. Between the fact of enrichment and the suffered expenses should exist sufficient cause and effect связь370. Deterioration of a financial position enriched, not connected with the received enrichment, does not grant the right to objection. Besides, the expenses suffered недобросовестно371 and at realised acceptance of risk are not considered. A subject of discussions is possibility of the account of the expenses suffered at fulfilment правонарушения372.

Debatable there is a question, whether the objection about enrichment loss only in that case when pauperisation has occurred owing to conviction of the reception of enrichment enriched in legitimacy is accessible, or similar restriction of a scope of objection it is not required. As an example for check of the given approaches the case of loss of enrichment as a result of  destruction of the received object, for example, owing to a fire can be used. Though enrichment loss in this case is not connected in any way with belief of the enrichment enriched in safety, the objection about enrichment loss should it be accessible, that proves to be true dominating мнением373.

Of an admissibility kondiktsionnogo requirements in the situations designated by us earlier as «cases reflektivnogo actions of the rights», the English right takes of the following position. According to dominating opinion of experts when the person receives benefit from the actions of other person which are carried out by last in its own interests or interests of the third party, at the addressee such «casual benefits» (incidental benefits) do not arise indemnification duties. As R.Goff and G.Johns, the person giving benefit to other person, osoznanno operating in own mark

370 Thus, according to E.Barrouza, the causal relationship can be considered sufficient and when expenses have been suffered in expectation of the enrichment fact, – see: Burrows A. Op. cit. P. 533–534.

371 Concept of unconscientiousness with reference to the given objection is debatable. A classical example of unconscientiousness is the situation when enriched bears expenses, realising, that enrichment

It is received superficially.

372 Ibid. P. 537–544.

373 Ibid. P. 528–529.

151

Interest, has no right on реституцию374. However explanations of the given rule offered by experts разнятся375. R.Goff and G.Johns start with reasons of policy of the law: inadmissibility kondiktsionnogo requirements follows from this, that the box pandory requirements otherwise would be opened. In the interest it is not simply not enough actions for a restitution substantiation, but also on the contrary: such actions exclude the right on реституцию376. According to E.Barrouza, kondiktsionnoe the requirement in such cases is absent owing to absence of the factor doing enrichment unfair (superficial) (no unjust factor) 377. According to C.Vebba (Webb), refusal in satisfaction kondiktsionnogo requirements is caused by that in the majority of similar cases the claimant cannot be considered possessing exclusive upravomochennostju (exclusive entitlement) concerning received as the respondent ценности378. The Item Birks denied possibility of the restitution of casual benefits, considering their received thoroughly. As the basis of their reception he suggested to consider дарение379. The original substantiation of inadmissibility of the requirement was offered Ales Bol (Ball). As the given author marks, the decision of a problem of casual benefit is impossible neither from the point of view of an enrichment category, nor from the point of view of the enrichment basis. In its opinion, the majority of cases of reception of casual benefits should be considered through

374 Goff R., Jones G. Op. cit. P. 68.

375 the review of opinions See: Ball E. Abandonment and the Problem of Incidental Gains in the Law of Restitution of Unjust Enrichment. Restitution Law Review. Volume 19. Marenex Press. 2011. P. 50–56.

376 Goff R., Jones G. Op. cit. P. 68, 69.

377 Burrows A. Op. cit. P. 87, 108.

378 Webb C. Property, Unjust Enrichment, and Defective Transfers//Philosophical Foundations of the Law of Unjust Enrichment. P. 351–368. According to the given author, in certain cases the right metes among persons

(Assigns to them) the certain blessings, as a typical example of that the property institute serves. When

The respondent receives value belonging to the claimant without the consent or at the defective consent of the last, there is a duty of its return. When the value received by the respondent cannot be recognised by fixed or relying to the claimant, or is received with the consent of the claimant, kondiktsionnoe the requirement is absent. As one of the examples illustrating the given rule, C.Vebb results business Victoria Park Racing and Recreation Grounds Company Ltd v Taylor. The claimant has organised carrying out of races on the ground area, selling tickets for show to spectators. Under the arrangement with the proprietor of the next site the radio company has erected on it a survey platform and the beginnings on the air to broadcast an event during races that has created alternative possibility of supervision over jumps for spectators and has reduced attendance of actions, having caused to that losses to the organizer of races. By means of the action of tort the claimant tried to forbid radio companies an announcement. In the claim it has been given up with the reference including that possibility of supervision over the jumps, having value from the point of view of business of the claimant, is not the protected right interest. The given position, according to the author, would be quite applicable and to kondiktsionnomu to the requirement if that has been declared.

379 Birks P. Op. cit. P. 158–159.

Prism of that reception of benefits by the respondent was preceded by voluntary refusal of the claimant (victim) of them in this connection application of the concept of disclaimer (value) is possible. As the claimant has refused corresponding value, its reception by the respondent cannot be considered as an event for the account истца380.

The considered positions of the English right of unjust enrichment allow to draw following conclusions on regulation in area interesting us.

According to dominating opinion reception of any objects having monetary cost, basically, can form enrichment. Thus according to a position gaining the increasing distribution now, the independent kind of enrichment constitutes as well reception of any rights, without dependence from presence at them costs. Thus the concept of the right of the given context has no rigid maintenance: as marks R.Chemberz, with rare exception, everything can be enrichment, that can be transferred superficially or wrongfully and then is returned.

Subject restitutsionnogo requirements in the first case is monetary indemnification at a rate of market cost of the corresponding blessing. In the second case as a result of the enrichment fact arises or real right about enrichment, or, according to some authors, special sekundarnoe the rights which realisation can generate resulting trust, cancel the transaction (rescission), make certain changes to legal relation (rectification), or to make the subrogation.

With reference to cases of enrichment by the objects having monetary cost, according to a dominating position to the claimant on kondiktsionnomu

380 Ball E. Op. cit. P. 56–71. According to the author, from the point of view of refusal of value the classical example of reception of casual benefit – heating of apartment of the neighbour as a result of heating own should dare. As the claimant meaningly supposed heat distribution for limits of its apartment (or reasonably should suppose it), and it has not undertaken measures to bar of claim by lapse of time of distribution of heat, it is considered refused the given value.

It is enough to requirement to prove the fact of reception of the corresponding blessing the respondent. After that, according to one authors, the respondent has the right to prove absence at the received blessing of subjective value for the respondent, or, according to others, absence of the consent (choice) of the respondent on reception of the given blessing.

In some cases similar statement of defence is considered inadmissible. First of all, it is a question of situations when benefit of the respondent admits conclusive, in particular, when the respondent realised (has transformed to the monetary form) the received benefit, or, according to some authors, realises it with reasonable probability, or even then when from the reasonable point of view to the respondent comes under it to realise.

In some cases the right to refer to loss of initially received enrichment that attracts the termination or reduction of its obligation before sustained is given to the respondent. The exact bases and limits of the given objection continue to remain a subject of discussions.

The specified conclusions allow to characterise regulation of obligations arising from unjust enrichment in the English right as based on the subject-oriented approach. Transition of concrete value from the victim to the enriched attracts a duty of the last to compensate its cost (or, in some cases, gives sustained other right concerning an enrichment subject). Positive changes in cumulative property of the enriched are not included into the basis of occurrence of the obligation and do not constitute a requirement subject though can to be considered in certain cases for definition of the size of responsibility.

P.Birksa's words that in the English right superficial (unfair) reception of values, as a rule, creates the liability directed on reclamation of the abstract property lot of the enriched, at first sight, can contradict the given conclusions. At such approach,

According to the author, enrichment is considered in a context of cumulative property of the addressee (P.Birsk calls the given approach «the abstract concept of riches» – abstract conception of wealth). Only on occasion, in which by the English right reclamation of the received objects in the nature is supposed, the given approach concedes to the subject approach. However and in such cases enriched the objection about enrichment loss is given, that, according to P.Birska, testifies to a priority of the first подхода381.

Actually, P.Birksa's resulted statement does not contradict qualification of the English right of unjust enrichment as the system based on the subject-oriented approach. The recognition of coming under indemnification of cost of superficially received object the abstract property lot enriched in itself does not mean a recognition a subject kondiktsionnogo the requirement of positive change in its cumulative property. As marks E.Lodder, for the unjust enrichment right that value which has been received by the respondent, instead of that value matters,

Which has led to increase in cumulative property ответчика382.

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A source: GERBUTOV VICTOR STANISLAVOVICH. CONCEPT And ENRICHMENT FORMS In KONDIKTSIONNYH OBLIGATIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2014

More on topic § 2. The English right:

  1. the Appendix 1. A small parametrical kernel of English language (by data «the English-Russian dictionary» V.K.Muller)
  2. Chapter 2. Features of transfer of Russian and English diplomatic and administrative terminological lexicon XVI-XVII of centuries (on the basis of Russian and English diplomatic documents)
  3. a know-how legal regime in the English right
  4. English language
  5. § 2.1. PARAMETRICAL CHARACTERISTICS OF LEXICON OF ENGLISH LANGUAGE
  6. functioning of an English-speaking web browser in the global world
  7. «getting responsibility» in the English right
  8. 3.6. Experiment on a material of an English pseudo-phrase
  9. 2.2. Linguistic researches in the field of modern English FET
  10. 2.3. Terminology of the right of the Middle English period
  11. 1.3. Features of realisation of communicative tactics and strategy in English dialogue
  12. Konnektornaja an orientation of verbally-tactile actions in English dialogue
  13. In English 10.
  14. In English 27.
  15. 2.2 Legal lexicon of the Old English period
  16. Lingvokulturnaja adaptation (localisation) of an English-speaking web browser
  17. § 3. The reception of the English right.
  18. Functional national specificity naimenovanijjavlenythe nature in Russian and English languages
  19. 1.1. Role characteristics of participants English interaktsii
  20. the Appendix the Russian-English historical dictionary of diplomatic and administrative terminological lexicon XVI-XVII of centuries