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Property, Subsidiarity, and Unjust Enrichment(8) |
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(c) Unjust Enrichment and Wrongs.Finally, we may turn to the law of wrongs. In the German system and the common law, there is no general subsidiarity principle between wrongs and unjustified enrichment. It would appear that we can infer that for these systems, there is no sense in which unjustified enrichment stands in a corrective relationship to the law of wrongs; they do not deal with the same kind of matter.120 Wrongs are not, in general, concerned with transfers of benefits. But this brings us to the widest subsidiarity principle, that which applies to the general enrichment action in Quebec. If the plaintiff has a claim based on extracontractual fault, or even used to have one which is now prescribed, it appears that there can be no general enrichment action. The generally subsidiary character of the general unjustified enrichment claim in Quebec law suggests that its relationship to all other parts of the legal system is conceived as a corrective one.
It is difficult to understand how it can be thought to have this relationship to the law of wrongs, but a historical explanation seems best. The general enrichment action in the form of the actio de in rem verso was an extra-codal development. This perhaps inevitably lent it a generally subsidiary air; in a system with a general civil code, an extra-codal liability, created judicially, exists almost in a different legal order from the provisions of the code.121 This historical explanation fits with the observation that the action for the reception of a thing not due, which was always in the Code, is not subsidiary to the law of wrongs.122 It also fits with the observation of other jurisdictions.123 This difference between the general action and the action for the reception of a thing not due is otherwise quite puzzling, since on any view the latter is a special case of the former.124 If this is right, then one might question the choice made for the new Civil Code of Quebec, to codify the general subsidiarity of the general unjustified enrichment claim.125
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