tailieunhanh - Unjustified Enrichment: Key Issues in Comparative Part 9

Sau đó, có một ý tưởng mạnh mẽ hơn phụ đới, phủ nhận sự sẵn có của một tuyên bố làm giàu không chính đáng do việc áp dụng một số thiết lập khác của nguyên tắc pháp lý, ngay cả khi, theo những nguyên tắc, không có yêu cầu bồi thường sẽ nói dối. Một ví dụ sẽ giúp đỡ. | property subsidiarity and unjust enrichment 597 Then there is a much stronger idea of subsidiarity which denies the availability of a claim in unjustified enrichment due to the applicability of some other set of legal principles even if according to those principles no claim will lie. An example will assist. Assume that an occupier of land who is not the owner has made improvements to the land. If a codified system has a set of provisions which deal specifically with such improvements and if according to those provisions the occupier has no claim then a court would probably also deny a claim based on a general principle against unjustified The important point is that here the plaintiff has no claim at all. Weak subsidiarity as discussed in the previous paragraph only directs a plaintiff to the correct claim strong subsidiarity can deny the plaintiff any claim. It can also be said that while weak subsidiarity is a relationship between claims strong subsidiarity is better understood as a relationship between legal dispositions or sets of rules. It will be argued below that each of the systems under consideration makes unjustified enrichment strongly subsidiary in some circumstances. It would be possible for a system to make unjustified enrichment claims weakly subsidiary to all other claims and indeed it appears that this is the law of Quebec. It would not however make sense for a system to make unjust enrichment strongly subsidiary to all other rules of law. The effect would be that there could never be a claim in unjustified This can be illustrated by a recent French case in which the plaintiff sought recourse by an action of guarantee as well as an action de in rem The action of guarantee was rejected since no fault was shown on the part of the defendant but the claim in unjustified enrichment was allowed. The defendant appealed on the ground that this ignored its subsidiary character but the Cour de cassation rejected the .