Harmonization of Laws
- Elgar European Law series
Chapter 15: Restitution
15. Restitution INTRODUCTION The Rome II Proposal deals not only with torts, but also with non-contractual obligations arising out of an act other than a tort. In other words, it deals with restitutionary obligations. Unlike a tort, a restitutionary obligation may arise without there being any wrongful act on the part of the defendant. The main choice of law rule for restitutionary obligations is laid down by Article 9 of the Proposal. This replaces the rules laid down by Articles 3–7, which are confined to torts. But Articles 1–2, 8 and 10–27 apply to restitutionary obligations as well as torts.1 Article 9 divides restitutionary obligations into ones which arise out of unjust enrichment, and ones which arise out of actions performed without due authority in connection with the affairs of another person (negotiorum gestio). UNDUE ENRICHMENT According to the Explanatory Memorandum,2 this category includes claims for repayment of amounts wrongly received, such as payments made by mistake.3 It also includes restitutionary claims by a principal against his agent and a contractor for recovery of a bribe paid by the contractor to the principal’s agent for assistance in the obtaining of a contract with the principal.4 In 1 By Article 9(6) of the Proposal, all non-contractual obligations in the field of intellectual property are excluded from Article 9 and referred to Article 8. According to the Explanatory Memorandum (at p. 22), an obligation based on unjust enrichment arising from an infringement of an intellectual property right...
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