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NEWSLETTER 2013
250
Payment in Satisfaction of a Non-existent Obligation
Article 78 of the TCO is entitled “payment in satisfaction of a non-
existent obligation”. As per this article, a person who has voluntarily satisfied
a non-existent debt has a right to restitution of the sum paid only if he can
prove that he paid it in the erroneous belief that the debt was owed. Therefore,
where an obligation that does not actually exist is satisfied, in order to rely
on an unjust enrichment, there are some conditions that must be realized:
(i) payment should be conducted for the performance of the obligation, (ii)
there should be a non-existence of debt and (iii) the person performing the
obligation should presume himself under the obligation by error.
It is clearly designated in the law that enrichment arising from the
performance of a time-barred obligation or from fulfillment of a moral
duty cannot be reclaimed. However, other provisions of the law with
respect to reclaiming the performance of non-existing debts are reserved.
The scope of a restitution obligation arising from unjust enrichment
differs depending on whether the enriched person acted in goodwill or
bad faith.
Scope of Restitution
Under Article 79, unless the person being unjustly enriched can show
that he has disposed of some part of the enrichment at the time the claim
for restitution is brought, he shall be held responsible for restitution of
what he has not disposed. On the other hand, where the person being
unjustly enriched disposes of the enrichment in bad faith or is aware that
he is bound to return the enrichment in the future, then the enrichment
must be restituted fully.
Article 80 foresees the expenses which may be claimed by the person
enriched unjustly. Herein, the expenses to be claimed differ depending
on whether or not the person acted in goodwill or in bad faith. Where the
enriched person acted in goodwill, he may claim the necessary and useful
expenses. However, where the enriched person acted in bad faith, he is
only entitled to reimbursement of the increase in the property value at
the time of its return, along with the necessary expenses. Nevertheless, if
no compensation is offered to him he may, before returning the property,