不当得利法）-条文及示例 -英文.doc

不当得利法）-条文及示例 -英文BOOK VII UNJUSTIFIED ENRICHMENT CHAPTER2: WHEN ENRICHMENT UNJUSTIFIED VII.–2:101: Circumstances in which an enrichment is unjustified (1)An enrichment is unjustified unless: (a)the enriched person is entitled as against the disadvantaged person to the enrichment by virtue of a contract or other juridical act, a court order or a rule of law; or (b)the disadvantaged person consented freely and without error to the disadvantage. (2)If the contract or other juridical act, court order or rule of law referred to in paragraph (1)(a)is void or avoided or otherwise rendered ineffective retrospectively, the enriched person is not entitled to the enrichment on that basis. (3)However, the enriched person is to be regarded as entitled to an enrichment by virtue of a rule of law only if the policy of that rule is that the enriched person is to retain the value of he enrichment. (4)An enrichment is also unjustified if: (a)the disadvantaged person conferred it: (i)for a purpose which is not achieved; or (ii)with an expectation which is not realised; (b)the enriched person knew of, or could reasonably be expected to know of, the purpose or expectation; and (c)the enriched person accepted or could reasonably be assumed to have accepted that the enrichment must be reversed in such circumstances. VII.–2:102: Performance of obligation to third person Where the enriched person obtains the enrichment as a result of the disadvantaged person performing an obligation or a supposed obligation owed by the disadvantaged person to a third person, the enrichment is justified if: (a)the disadvantaged person performed freely; or (b)the enrichment was merely the incidental result of performance of the obligation. Illustration1 X, a customer of bank D, instructs the bank to transfer funds to the credit of E, a football club of which X is the chairperson and to whom X is indebted. The bank makes a payment to the credit of E in accordance with X’s instruction. D was mistaken at the time of transfer as to X’s creditworthiness and would not have made the transfer if it had known the true situation as regards the state of X’s financial arrangements. Noheless D has no enrichment claim against E. D’s right to repayment of the money transferred is exclusively against X, to whom D was contractually obliged to effect the transfer. That D’s contractual claim against X may be worthless if X is insolvent does not affect the matter. Illustration2 D is engaged by X, the vendor of puter equipment, to correct a defective installation of pre-installed software on a work of puters sold by X to E and operating in E’s premises. After D has pleted the work, but before any payment by X to D, X bees subject to insolvency proceedings. D has no enrichment claim against E because any enrichment of E is the result of D’s performance of a contractual obligation to X to perform to E. D is confined to a contractual claim against X, even if D’s claim against X is virtually worthless. D took on this risk of insolvency when contracting with X. Illustration3 D contracts with X, a tenant of a building owned by E, to install a new heating system and carries out the work. E may have been enriched in so far as under the applicable property law the heating system may have bee part of E’s property. Even if the contract between D and X is void or avoided (so that D has no contractual claim against X for remuneration of the service provided), D still has no claim under enrichment law against E, assuming there is nothing like fraud, threats or unfair exploitation affecting the matter. Since E’s enrichment results from D discharging an obligation to X, the enrichment is justified in relation to E, as a third party to the obligation, even though the obligation was of no effect. The enrichment is only unjustified in relation to X. D has an enrichment claim against X. Illustration4 T is a tenant of land let by L. The rent is relatively low, but T is obliged under the terms of the lease to renovate and convert a building on the land. T procures for this purpose from bank B a loan which T intends to finance by sub-letting the land to third parties. The loan is secured by a charge over the land granted by L. After the conversion of the building is finished, L resolves to sell the land. T is agreeable to the sale provided the loan is repaid out of the proceeds of sale. B releases the charge when L procures an alternative security, namely a guarantee from bank X. In breach of the agreement with T, L fails to pay off the loan. After unsuccessfully seeking re-payment from T, who has defaulted on the loan, B successfully sues X on the basis of the guarantee. Y (the assignee of X)has no claim under this Book against T, even though T is undoubtedly enriched by X’s discharge of his debt to B (decrease in liabilities). However, X benefited T in the performance of an obligation which X owed to L, L having procured the guarantee of T’s debt as a replace。