Unjust enrichment and change of position
Faculty of Law
Maastricht journal of European and comparative law. - Maastricht
, p. 159-186
University of Antwerp
Unjust enrichment is a highly debated and complex legal device, which gives rise to multiple legal problems. One of the difficulties arising within the law of unjust enrichment is that of the security of receipt of the debtor. Contrary to contractual obligations, the debtor of the legal obligation to make restitution is not always aware of the existence of that obligation. Consequently, the debtor may have acted to this detriment in reliance on his belief that he was entitled to keep the enrichment. This contribution analyzes whether the good faith of the recipient is protected in a restitutive relationship in some of the major legal systems in European private law. This analysis will conclude that all legal systems indeed protect the defendant who has changed his position in good faith that he was entitled to the enrichment, but that the manner in which the protection is provided differs between these legal systems. The second part of this contribution shall elaborate on the prevailing approach in European private law, which starts from the defence of change of position. It will show that all legal systems are struggling to find a just solution for the same problems.