Enrichment ‘at the expense of another’ and incidental benefits in German law

• Jurisdiction: South Africa
• Author: None
• Published date: 24 December 2019
• Date: 24 December 2019
• Pages: 453-468

453

Enrichment ‘at the expense of another’

and incidental benets in German law

SONJA MEIER*

The current English discussion on the ‘at the expense of’ element proceeds

on the assumption that it has the same meaning in all kinds of unjust

enrichment claims. The same assumption was made under the unitary

doctrine in Germany after 1900. However, problems in dening the ‘at

the expense of ’ requirement led to the development of the doctrine of

separation, which prevails today. Its essential feature is that the elements

of ‘at the expense of’ and ‘without legal ground’ have dierent meanings

in the dierent condictiones. A recurring problem is how to explain the

exclusion of restitution in cases of incidental benets. It may be argued

that there is a legal ground, that the benet has not been at the claimant’s

expense, or that the defendant did not receive a benet at all. Those who

deny an enrichment at the claimant’s expense, however, have to be aware

that this explanation holds true only if no performance is involved.

I INTRODUCTION

When the English law of unjust enrichment burst on to the

academic stage in the 1980s and 1990s, discussions tended to focus

on whether (and in what circumstances) an enrichment could

be regarded as ‘unjust’, the role of the so-called unjust factors,

the nature of the benet received by the defendant, and the role

of restitutionary defences. By contrast, the question of whether

the defendant’s benet was obtained at the claimant’s expense was

originally neglected. In the past two decades, however, the ‘at the

expense of ’ element has come to the fore of the academic debate.

That debate mainly revolves around the following two questions.

Firstly, does the ‘at the expense of ’ element require a loss on the

part of the claimant corresponding to the defendant’s benet and, if

so, what kind of loss is this?1 Secondly, does the defendant’s benet

* LLM (London); Professor of Civil and Comparative Law, University of

Freiburg, Germany.

1 Cf P Birks Unjust Enr ichment 2 ed (2005) 78–86; A Burrows The Law of

Restitution 3 ed (2011) 64–5; GVirgo The Principles of the Law of Restitution 3 ed

(2015) 116–19; M McInnes ‘At the plainti’s expense: Quantifying restitutionary

relief’ (1998) 57 Cambridge Law Journal 472.

2019 ACTA 453

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454 PRIVATE LAW IN A CHANGING WORLD

have to come directly from the claimant or is it enough for the

defendant to have been beneted indirectly? In other words, is

there a ‘direct providers only’ rule (possibly with exceptions)?2 Both

questions were at issue in the seminal judgment of the Supreme

Court in Investment Trust Companies v HMRC in 2017.3

The current English discussion proceeds on the assumption that

the ‘at the expense of’ element must be given the same meaning in

all types of unjust enrichment claims.4 The same assumption was

made in Germany in the rst half of the 20th century. For this reason,

it may be useful to give an account of the older German discussions

regarding the ‘at the expense of ’ requirement and show the impact

the modern doctrine of separation has had on it. It will be argued

that today the requirement plays only a limited role, namely in cases

of incidental benets. I hope that at least the last part will be of

some interest to Danie, whom I have known for over 20 years as a

dear friend and truly learned scholar.

II THE ROLE OF THE ‘AT THE EXPENSE OF’

REQUIREMENT IN GERMAN LAW

(1) The approach of the unitary doctrine

The general enrichment claim introduced by the German Civil

Code (BGB) was originally understood as a unitary claim requir ing

an enrichment at the claimant’s expense.5 Commentators and

2 Cf Birks (n 1) 87–8, 93–8; C Mitchell, P Mitchell & S Watterson (eds) Go &

Jones on the Law of Unjust Enrichment 9 ed (2016) paras 6–10 et seq; Burrows (n 1)

66–71, 74–5, 84–5; A Burrows A Restatement of the English Law of Unjust Enrichment

(2012) 44–55; Virgo (n 1) 105–16; J Edelman & E Bant Unjust Enrichment 2 ed

(2016) 92–105.

3 Investment Trust Companies v HMRC [2017] UKSC 29, [2017] 2 WLR 1200

(UKSC) paras 37–74.

4 However, this assumption has recently been doubted by A Burrows ‘“At the

expense of the claimant”: A fresh look’ (2017) 25 Restitution Law Review 167–82,

who wants to distinguish between cases where the claimant confers a benet on

the defendant and cases where the defendant takes the benet from the claimant.

5 See, eg, R Mansfeld in Das Bürgerliche Gesetzbuch unter besonderer

Berücksichtigung der Rechtsprechung des Reichsgeric hts (RGRK), Band I: Allgemeiner Teil,

Recht der Schuldverhältnisse 3 ed (1921) before § 812 n 1; LEnneccerus Lehrbuch

des Bürgerlichen Rechts, Band I 2: Rec ht der Schuldverhältnisse 10 ed (1927) § 441;

M Landois in Planck’s Kommentar zum Bürgerlichen Gesetzbuch, Band II/2: Recht

der Schuldverhältnisse, §§ 664-853 4 ed (1928) § 812 I 2; P Heck Grundriß des

Schuldrechts (1929) § 141 n 4; L Enneccerus & HLehmann Lehrbuch des Bürgerlichen

Rechts, Band II: Recht der Schuldverhältnisse 11 ed (1930) § 217 II.

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