12 november 2018

Title:The action of Unjust Enrichment

Author: Vicente Parra Cabrera

The main problem that raises this research work is the study and structure of an action that does not have an explicit regulation in Spanish legal order, with no prior mention of unjust enrichment as a general principle of Law or as a source of obligation in Positive Spanish Law.

Therefore, the objective of the work is to study juridical nature, content, essential elements and budget for the action of Unjust Enrichment in a schematic and practical way. In addition, it is also important to study the general principle of Law in which it is based, outlining the disagreement points in jurisprudence and doctrinal to make it available and useful for any juridical operator.

Two issues are raised in the work. The first one is related to the adequacy and effectivity of the subject matter i.e. the way it is configured in the Spanish legal order and its expected jurisprudential regulation. The second one is related to need of regulating the Unjust Enrichment in the Spanish positive legal order so that legal certainty is provided, and solutions to doctrinal-jurisprudential controversial and faded issues are offered according to its most controversial points.

The work gathers a wide documentary review from judgements of the Supreme Court of Spain and reference literature

In order to achieve the objectives, a large jurisprudential sample, including some of the most relevant judgements related to the matter, from the Spanish Chamber of Civil Law is used. Besides, the most representative doctrinal literature on Unjust Enrichment is utilised together with an analysis of different authors’ work on the study of the matter since the middle 60s based on an extensive literature and plenty of useful jurisprudential references.

Studying the Unjust Enrichment from a comparative law perspective is out of the work provided that the objectives and the subject matter is the Unjust Enrichment in the Spanish Private Law. Thus, many relevant and doctrinal works deal with the former and a classification of Enrichment actions. This work focuses therefore on the generic action of Enrichment, applicable to any situation involving an unjust enrichment.

The work is divided into two different parts. The first one discusses the Unjust Enrichment as a legal institution supporting the matter (general principle of law and source of obligations) and its origin and development in the Spanish order. The second one studies separately the matter: origin, legal nature, content, and essential features and budget in implementation in a separated and systemised manner.

The research work offers an answer to the basic or main practical questions that may arise before the exercise of the enrichment action

The research concludes with an eminently practical summary that exposes the main or unanimous doctrinal and jurisprudential lines in each of the studied points, as well as pointing out those in which there may be controversy or doctrinal or jurisprudential disparity, so that the research work offers a response to all the basic or main practical questions that may arise before the exercise of the enrichment action.

Finally, regarding the raised issues, the initial problem that implied the absolute absence of regulation of unjustified enrichment in our positive legal order, turns out to be the cause of a very extensive and conscientious work both jurisprudential and doctrinal that, in order to supply the absence of positive regulation, offers us a detailed regulation of this figure that offers true legal guarantees. However, the Spanish Law needs a positive regulation that, on the one hand, offers legal security by laying the legal basis for enrichment and, on the other hand, resolves the points where there is a disparity of criteria. For the realization of a solid normative proposal, it is required a more exhaustive study that avoids generating a greater legal conflict in the controversial points, and that conserves the generalist juridical nature of the action, that allows that it can be exercised in any situation of fact in which there is an unjust enrichment.