- Elgar European Law series
Chapter 16: Restitution
It is generally recognised that the law of obligations (other than familial obligations) may be divided into three branches: contract, tort and restitution. Each serves its own underlying purpose. The law of contract aims to support legitimate expectations arising from consensual transactions. The law of tort aims to promote security from harmful interference, especially physical interference with persons and tangible property. The law of restitution aims to prevent unjustified enrichment. Thus obligations may be classified for conflict purposes as contractual obligations, tortious obligations and restitutionary obligations. Both tortious and restitutionary obligations are non-contractual, but a restitutionary obligation differs from a tortious obligation in that a restitutionary obligation may arise without there being any wrongful act on the part of the defendant, and that a restitutionary obligation is designed to restore or transfer to the claimant a benefit which has been obtained by the defendant, rather than to compensate the claimant for an injury or loss which has been suffered by the claimant. The Rome I Regulation deals with contractual obligations, and the Rome II Regulation deals with both torts and restitutionary obligations. Thus Recital 29 to the Rome II Regulation explains that provision should be made for special rules where damage is caused by an act other than a tort, such as unjust enrichment, negotiorum gestio and culpa in contrahendo. These additional matters are regulated primarily by Chapter III (Articles 10–13) of the Rome II Regulation.
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