New PDF release: Restitution at the Crossroads: A Comparative Study

Rules Procedures

By Thomas Krebs

ISBN-10: 1859416462

ISBN-13: 9781859416464

This publication contrasts competing types of unjust enrichment legal responsibility: the typical legislations version and the civil legislation version. the previous bases restitution on concrete,pragmatic unjust components, rendering an enrichment unjust within the eyes of the legislation, whereas the latter operates with the damaging requirement that restitution will stick with if an enrichment isn't really supported by means of a criminal floor or juristic cause. the typical legislations of unjust enrichment is a really younger topic, whereas its civil legislations counterpart relies on millennia of improvement. may still English legislations as a result settle for that the civil legislation version is stronger and undertake an anglicised model of criminal floor reasoning? this can be certainly advised by way of German commentators, and the English case legislation looks relocating our enrichment legislation in that path. This e-book considers such arguments via analyzing the explanations for restitution in English and German legislations. This ebook should be a beneficial source for teachers and scholars drawn to the legislation of unjust enrichment and comparative legislation. It additionally offers an creation to the German legislation of unjust enrichment for you to be precious to attorneys in eu deepest perform.

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Additional resources for Restitution at the Crossroads: A Comparative Study

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The mainstay of Meier’s argument is that ‘mistake’ as an unjust factor is over-inclusive and will lead to too much restitution in English law. This claim is tested against the theoretical background of mistake as a reason for restitution, and by looking at the relevant rules of English and German law. Part III examines the unjust factor ‘failure of consideration’. It will be argued that this unjust factor, properly understood, would have led to correct results in the swaps litigation. If it is interpreted restrictively, however, it leaves a gap in the law of unjust enrichment which is then filled by putative reasons for restitution such as ‘absence of consideration’ which are in reality alien to our system.

52 Ibid, at 409. 12 CHAPTER 2 ESSENTIAL ELEMENTS OF GERMAN LAW This chapter is to put the comparative discussion that is to follow into context. Even at the cost of anticipating some of the discussion to come, it is necessary to give the reader an introduction to the relevant parts of German law. Only in this way can the comparative analysis work efficiently. The first part of this chapter will give a short historical introduction. To understand the modern German law, one has to be aware of the historical background.

The fruits of such efforts were many drafts, and one fully-fledged civil code, which passed into law in Saxony as late as 1863. State legislation had, for the first time since the reception of Roman law, declared its independence of legal science. It was replaced by the ‘will of the people’, expressed by the legislature of the constitutional State. Had the ius commune, Roman law as interpreted and applied by ‘legal scientists’, acquired more than subsidiary validity throughout Germany, had it won the same victory as that won by the King’s Courts and the common law in England, it may well be that Germany would never have had a codification.

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Restitution at the Crossroads: A Comparative Study by Thomas Krebs

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