Edited by Elise Bant, Kit Barker and Simone Degeling
Chapter 22: Disenrichment in German law
This chapter provides a comparative perspective on change of position defences by reference to the German defence of disenrichment. It explains key characteristics of disenrichment as codified in § 818 III, IV and §§ 819 and 820 BGB, its relationship to other provisions governing liability and the major controversies surrounding the defence. The heart of the defence is simple: it operates to exclude restitution to the extent that a good faith recipient is no longer enriched. However, thus drawn, the defence has been accepted to be unacceptably generous to the unjust enrichment debtor, the only express limit being that the defence will not apply to disenrichments that are suffered after service of proceedings. Thus, unlike its common law counterpart, it is clear that there is no requirement for reliance on the part of the defendant: indeed, the loss of the received object provides a defence even in insolvency. Efforts to limit the ambit of the defence through such interpretive routes as the Saldotheorie have generated their own problems, producing at times quite different results between otherwise very similar cases and hence generating, in turn, numerous exceptions to the rule. A root of the problems with ‘disenrichment’ lies in the Code’s failure squarely to address whether restitution is concerned with reversing transfers of value, or reversing failed transfers of things or objects. This uncertainty is also reflected in debates over the relationship between the disenrichment rules and rules governing those in good faith possession of another’s property. Similar debates are currently raging in common law jurisdictions. The chapter concludes that the way forward may lie in a closer focus on the reasons for the enrichment claim and thus a better understanding of when and whether the defendant is entitled to rely on the security of receipt.
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