France-ho ni okeru Henkan-Kyusai no Shohouri (French law on restitution and unjust enrichment)

This book addresses the historical development of unjust enrichment in French Civil Law, and the current issues of interpretation. The French Civil Code lacked a broad unjust enrichment system that could be applied to all situations where the return of profits transferred without grounds is an issue, unlike Japanese and German law that it inherited. We must unravel the various systems scattered throughout civil law to elucidate the relationships between them.
 
The following are two gaps in related research to date. The first is a misunderstanding of restitutions following contract invalidation and cancellation (*including the return of supplied items and the handling of gains and interest, etc.). The German Civil Code conceived of a system with a broad application of condictio, which was the right to seek recovery under Roman law. In doing so, it assumes the lack of a cause to retain the gains (the “legal cause” in Article 703 of the Japanese Civil Code) as a unifying perspective for a variety of cases involving this right. In comparison, the Napoleonic Code merely preserves a specific condictio for money paid by mistake. There are arguments that this type of condictio should be a right to seek restitutions as a settlement of failed contracts based on the premise that condictio itself is a model unjust enrichment system that mediates the theory of ex post facto mistaken payments due to contract invalidation or cancellation. While it may seem relevant, a look back at the original time period serves to negate this conjecture. The second point is that while the right of action called “action de in rem verso” (*the original term is preserved in this book to avoid any limitation in meaning due to translation) appears to have a broader range of application, its name invites confusion. The decision in the highest court that recognized this was from 1892 and actually concerned unjust enrichment between three parties, similar to an action de in rem verso case in Japan (*refer to Supreme Court 07/16/1970 24-7 Minshu, page 909). However, this precedent did not require lack of cause; it only required a causal relationship between the loss and the enrichment, simply on the basis of “equity.” Regardless of this, return by action de in rem verso was subsequently called “return of enrichment without cause.” Such a complicated fact was not necessarily clear.
 
In comparison to the traditional treatment of the above issues, this book employs a delicate textual interpretation. Concerning the first issue, this book searched for the whereabouts of the vanished condictio in France. Naturally, the concept of cause served as a clue. The interpretation of Roman legal texts concerning condictio served as a watershed for the requirement of validity in contracts as a cause, causal acts in relation to acts concerning bills, and the presence or absence of causality for the transfer of ownership. On the other hand, this work proved that emphasizing the major premise of French law that requires a judicial decision for the actual invalidation and cancellation of a contract results in restoration melting into such invalidation and cancellation. In the second issue, concerning action de in rem verso, the book presents the hypothesis that adding the concept of cause meant a “condictio conversion” for the right to seek return of profits. This is a byproduct of the significant mid-19^th century event in French legal history in which German works on French law were translated into the French language. In other words, action de in rem verso in 18^th-century German law entered France through translation, and through multiple subsequent rounds of enhancements, transformed into condictio. While this “condictio-ized action de in rem verso” was neglected for a long period of time, it became incorporated into precedent through explanatory notes to the above 1892 decision. While we are familiar with such a genealogy, this book boasts a more elaborate critical examination, including collating multiple versions and comparing multiple critical interpretations of the above translations.
 
Based on the above, by examining multiple issues in modern law (the 2016 amendments to the French Civil Code are addressed in the addendum), this work attempts to broadly compare the “restitutions theory,” which aims for complete restoration of transferred profits, with the “unjust enrichment theory,” which is exclusively focused on compensation for losses and assumes ignorance of the return of certain enrichment. While the outcome can be considered close to the unjust enrichment typology in German and Japanese law, there is likely a significant deviation between these bodies of law, which developed typology after the dream of a unified system was shattered, and the law of France, which could not even form a bridge between various systems. We will leave it up to the reader to validate this conclusion.
 

(Written by Tetsushi Saito, Associate Professor, Institute of Social Science / 2018)