Pietro Sirena

The DCFR – Restitution, unjust enrichment and related issues

It is obvious that a scholar of private law immediately understands what is at stake, because after all the concepts which are named go back to the Roman roots of the European legal systems (from the “restitutio in integrum” to Pomponio’s famous principle “nemo potest cum aliena iactura se locupletari”, which is reported in the Digesta). At the same time, however, one feels the need of giving each term an appropriate meaning, as if one should map a territory characterised by uncertain boundaries and attribute exactly the right label to the findings.

Principles vs. Rules in European Contract Law: From the PECL to the CESL, and Beyond.

Principles vs. Rules in European Contract Law: From the PECL to the CESL, and Beyond. The article aims at challenging the current definitions of the principles of law from the point of view of the European legal system. Its multi-levelled structure and its constitutional architecture, strongly based on the subsidiarity of the European Union, call for a new understanding of its principles. The authors of the article assume that the principles of European law are to be identified with the common core of the national legal orders, i.e. with the ius commune Europaeum, and with the constitutional condition of its application by the European Court of Justice. Such principles should be obtained through the critical comparison among the national laws, which should be aimed at pinpointing their points of convergence, even if implied and potential, with the only limit of their «not inconsiderable divergences» (case Höchst). Moving from such assumptions, the article deals with some interpretations of the Draft Common Frame of Reference (DCFR) and of the proposal of a Common European Sales Law (CESL), as well as of the Principles of European Contract Law (PECL). Finally, the need of finding the equilibrium between principles and rules of European law is discussed by the authors as a question of policy, which should be addressed by balancing the risk of failure of the legislative power (eventually caused by an overflow of the rules) with the risk of an unbearable democratic deficit (eventually caused by an overflow of the principles).

Towards a European Law of Unjustified Enrichment

Though historically recent, a European law of unjustified enrichment is already existing and embraces both contractual and extra-contractual restitution, which however are governed by different rules and shall not therefore lose their own specificity. In contractual restitution, the remedy is based on the general principle of unjustified enrichment (both in civil and in common law by now) and has a very large field of application: unlike the German model followed by the DCFR, distinguishing between avoided and terminated contracts is not necessary from the point of view of restitution of performances rendered by the parties (as demonstrated by the CESL), nor is convenient elaborating further sets of rules for the case of contractual voidness or withdrawal. In extra-contractual restitution, the Directive 2004/48/EC relating to the protection of intellectual and industrial property has provided for two different remedies (against infringement). The first, i.e. the payment of a lump sum equal to reasonable royalties or fees, is but a restitution of unjustified enrichment according to the general principle 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 properly based on the same general principle of law, because such profits can by definition exceed the claimant’s expenses: nevertheless, this restitutionary remedy, which is definitely established in English common law, can be granted by civil law as well, since it is but the action against the negotiorum gestor which has been foreseen by Roman tradition.