Elgar Asian Commercial Law and Practice series
Chapter 10: CHOICE OF LAW IN UNJUST ENRICHMENT AND NEGOTIORUM GESTIO
The Chinese General Principles of Civil Law provide that obligations between parties include not only contract and tort, but also unjust enrichment and negotiorum gestio. A collective terminology for these other obligations is not easily applicable. The common law terminology ‘restitution’ could perhaps be used, but the definition of restitution is never very clear. More importantly, restitution is a method of remedy, instead of a course of action. This book, thus, does not provide a specific, new terminology for these non-contractual, non-delictual obligations. Compared to contract and tort, unjust enrichment and negotiorum gestio generate greater difficulties in private international law. First, they both have a relatively shorter history and the legal rules and theories applicable to them are, in many countries, immature. The uncertainty in substantive law inevitably causes difficulties in conflict of laws. Secondly, although these obligations are not contractual or delictual, they usually relate to contracts, formed or unformed, or wrongs. As a result, they may be called quasi-contract, or quasi-delict, obligations, and can be treated in a similar way to contract and tort in the conflict of laws. Inconsistent opinions exist as to whether, for the purpose of choice of law, non-contractual, non-delictual obligations should be classified as sui generis obligations, subject to different choice of law rules or if they can be simply included in the broad classification of contract or tort depending on the characteristic of each specific case.
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