Historical Synopsis of the Change-Of-Position Doctrine in South African, American and Continental European Laws


Both common-law and civil-law recognize unjust enrichment in their legal systems. Historically however the concept developed along different lines, especially since the European sixteenth Century. These different development paths were influenced by the social thoughts of their times, particularly by the theological and natural law schools then prevalent in Europe, and the societal context in which the notion of justice operated. For English common-law, historically, a claimant could have recourse to the courts of equity for a remedy, and courts of equity applied ‘natural law’ principles. This is the version of enrichment liability that American law inherited. For that reason the defendant could resist an equitable claim with an equitable defence, although in some instances with reservation. In Continental Europe when a general principle against enrichment was formulated, it required adequate defences to protect the interest of defendants. The most important defence accepted in Civil-law jurisdictions is loss of enrichment. This paper looks at the historical development of this defence in comparative basis and argues that despite lingering differences, all legal systems analysed here have now converged in this regard. The convergence means that these systems concluded that the easier it is made to claim restitution, the more vulnerable members of society become in securing their own wealth and investments. Therefore loss-of-enrichment as defence is applied as a safeguard to such vulnerability.

Author Information
Aimite Jorge, University of Namibia, Namibia

Paper Information
Conference: ACPEL2016
Stream: Interdisciplinary 3: Interdisciplinary Law and Economics

This paper is part of the ACPEL2016 Conference Proceedings (View)
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Posted by James Alexander Gordon