Autore
Sirena, Pietro

Titolo
Towards a European Law of Unjustified Enrichment
Periodico
Osservatorio del diritto civile e commerciale
Anno: 2012 - Fascicolo: 1 - Pagina iniziale: 113 - Pagina finale: 134

Though historically recent, a European law of unjustified enrichment is alreadyexisting and embraces both contractual and extra-contractual restitution, which however aregoverned by different rules and shall not therefore lose their own specificity. In contractualrestitution, the remedy is based on the general principle of unjustified enrichment (both incivil and in common law by now) and has a very large field of application: unlike the Germanmodel followed by the DCFR, distinguishing between avoided and terminated contracts is notnecessary from the point of view of restitution of performances rendered by the parties (asdemonstrated by the CESL), nor is convenient elaborating further sets of rules for the case ofcontractual voidness or withdrawal. In extra-contractual restitution, the Directive 2004/48/ECrelating to the protection of intellectual and industrial property has provided for two differentremedies (against infringement). The first, i.e. the payment of a lump sum equal to reasonableroyalties or fees, is but a restitution of unjustified enrichment according to the generalprinciple of law (though English courts have regarded it as relating to damages). The second,i.e. account and disgorgement of profits gained by the wrongdoer, however, is not properlybased on the same general principle of law, because such profits can by definition exceed theclaimant's expenses: nevertheless, this restitutionary remedy, which is definitely establishedin English common law, can be granted by civil law as well, since it is but the action againstthe negotiorum gestor which has been foreseen by Roman tradition.



SICI: 2281-2628(2012)1<113:TAELOU>2.0.ZU;2-C
Testo completo: http://www.rivisteweb.it/download/article/10.4478/38412
Testo completo alternativo: http://www.rivisteweb.it/doi/10.4478/38412

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