Volume 19 (2011) / Issue 6
Abstract: Under the point of view of restitution law, the proposal on a Common European Sales Law, Part VII, draws a parallel between terminated and avoided contracts, which is much more convincing that the binary model followed by the Draft Common Frame of Reference (DCFR). It is, however, necessary to make this set of rules consistent with the general principle of unjustified enrichment, which according to European law represents its underpinning. In this article, the author suggests therefore the following corrections: (a) any reference to equity as a ground of restitution, or as a reason to modify or adapt the relevant provisions to the recipient's good faith, should be avoided; Article 177 of the aforesaid proposal should, therefore, be deleted; (b) on the other hand, a general defence of disenrichment in favour of the recipient in good faith should be provided, although only insofar as he has gained a patrimonial surplus by the terminated or avoided contract ( commodum ex negotiatione ); (c) Article 173, paragraph 3 of the proposal on a Common European Sales Law should be more openly referred to the effects of termination of contract, and not to restitution, and should therefore be incorporated in Article 8 of the aforesaid proposal; (d) the restitution rules should also govern the effects of the withdrawal, because treating them separately and differently is neither necessary nor useful; (e) as regards performance of service and digital contents, monetary restitution should be provided in the measure of their objective value, instead of referring to the recipient's saving; (f) when the substitute in kind of the benefit still exists in the recipient's patrimony, he should not be either obliged or allowed to fulfil his restitutionary obligation by paying the monetary value of that substitute; (g) natural and legal fruits of the good should be totally returned by the buyer only if he was in bad faith; (h) if he was in good faith, on the contrary, he should be exonerated, at least for the positive difference of their value with interests on price; (i) the buyer should be liable for the use of the good also when he was in good faith, even though a defence of disenrichment should be then provided in his favour for the positive difference of its value with the legal interests on price; (j) the seller in good faith should be obliged for compensation of expenditure only insofar as it has made the value of the good rise.
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