Unjust Enrichment (TBK art.77-82): Restitution Case

TBK Article 77 regulates the institution of unjust enrichment with the provision that "those who become enriched from someone else's assets or labor without a justifiable reason are obliged to return this enrichment."

Elements

• On the one hand, enrichment: Increase in assets or getting rid of debt in kind.
• On the other hand, impoverishment: Decrease in assets or effort spent.
• Causal link: The enrichment of one party is due to the impoverishment of the other.
• Lack of just cause: No contract, law, judge's decision.

Typical Situations

• Wrong bank transfer.
• Performance under invalid contract.
• The second payment for an outstanding debt.
• Payment made in error.
• Between the parties after contract cancellation.
• Providing benefit without reciprocal action.

Scope of Return (TBK article 79)

• Return in kind: As a rule, the return of what was obtained in kind.
• Refund: If full refund is not possible, monetary equivalent.
• Return of benefits: Benefits obtained during enrichment (interest, rent).
• Expenses: Necessary/useful expenses incurred by the enriched party.

Good Intentions - Malicious Distinction

• Enriched in good faith: Return only what was obtained.
• Malicious enrichment: In addition to enrichment, he is also returned the benefits he may have obtained.
• Bad faith: knowing or needing to know that enrichment was obtained unjustly.

Prescription (TBK article 82)

• 2 years from learning how to get rich.
• In any case, 10 years from the date of enrichment.
• The first of the two deadlines counts.

Supreme Court 3rd HD and HGK — Established Approach

3. HD and HGK adopt that in cases of unjust enrichment, the criterion of "absence of justified reason" must be presented with concrete evidence, if there is an existing contractual relationship, the contractual claim must be tried first, and that unjust enrichment has a "supplementary" nature.

"Contract — Unjust Enrichment" Order

If there is a contract, first of all the rights arising from the contract are used. However:

• Unjust enrichment if the contract is cancelled/terminated.
• Unjust enrichment if the contract never existed (invalid).
• Extra-contractual transfer of interest: direct unjust enrichment.

Wrong Transfer Example