Chapitre+d'enrichissement+injustifié+Baudouin-Jobin-Vézina

pp. 428-444

__**Chapter II - Other sources of obligations**__ I - La gestion d'affaires II - La reception de l'indu __**III - L'enrichissement injustifié**__

__**I. Nature**__ (543) Unjustified enrichment is a jurisprudentially-created notion, that was first legislated with the new CCQ, in arts. 1493 ff.

__**A. Notion**__ (544) It is legitimate to get rich at another's expense, as long as there is a valid justification or motive (ex: the good businessman who squashes competition). The law punishes a few cases of enrichment without justification: - Contract fraud (1401 CCQ) - Creditor fraud (1452, 1627, 1631 CCQ) - Lesion, when there's a party of lesser bargaining power (1405-7 CCQ) - Unjust enrichment upon divorce (427 CCQ) Sometimes unjust enrichment occurs outside these four legislated situations. Ex: a municipality hit with a pandemic has a doctor cure everyone and the city pays him nothing. The doctor has lost money and the city has gained. Now the doctor would have a recourse in the CCQ.

(545) There used to be only 'gestion d'affaires' and 'reception de l'indu', but some cases didn't fit into either category. (ex: someone who, without intention of managing another's business, watches someone else's animal.) Claims in unjust enrichment are different from claims in 'gestion d'affaires' and 'reception de l'indu': the conditions to prove are different.

__**B. Historique**__ (546) French and Quebec law on unjust enrichment have parallels. In //Compagnie Immobiliere Viger//, the SCC formally recognized the conditions of unjust enrichment.

__**1. Droit français**__ (547) The doctrine of "enrichissement sans cause", acknowledging the latter as an autonomous source of an obligation, was first recognized in French law in a case in 1892.
 * action //de in rem verso ://** an action claiming unjust enrichment

(548) Doctrinal writers Demolombe and Laurent believed unjust enrichment to be simply an extension of "gestion d'affaires." The person getting impoverished was managing the affairs of the person getting richer. There are two problems with this theory: (1) "gestion d'affaire" requires intention to manage, which is not present in unjust enrichment (2) The manager of the affairs can normally recover for all necessary useful expenses. The impoverished person, by contrast, only recovers the lesser of the impoverishment or the enrichment.

(549) Planiol, and later Ripert, compared unjust enrichment to responsabilité civile: the richer party owed restitution to the impoverised party because the unjust enrichment was a quasi-delict. Problems with this theory: (1) There would have to be fault to have civil responsibility. (2) If it were ECO, the impoverished person could only be compensated for his damage, or impoverishment. This is different from unjust enrichment where the compensation is the lesser of the impoverishment and the enrichment and where no action exists if there is no longer enrichment.

(550) Aubry and Rau defended the autonomy of the unjust enrichment doctrine. They justified it by saying that an action //de in rem verso// was a revendication: an "actif" is put back in the patrimony from which it was taken. Problem: (1) Doesn't explain the situation where the enrichment is a prevention of a loss, or a moral gain. In that case, there is no "transmission de valeur" between the two patrimonies.

(551) Ripert explained unjust enrichment as the transformation of a simple moral obligation into a juridical obligation. Most French authors today explain the source of unjust enrichment as quasi-contractual. Unjust enrichment is a quasi-contract, jurisprudentially-created, with a moral foundation.

__**2. Droit québecois**__ (552) Like in French law, the doctrine of unjust enrichment was first assimilated with "gestion d'affaires" before becoming a separate doctrine thanks to Mignault's decision in //Regent Taxi c. Congrégation des Petits Frères de Marie//.

(553) Mignault argued in 1901 that action //de in rem verso// was a simple extension of action //negotiorum gestio// (for 'gestion d'affaires). Mignault, in 1934, agreed with his decision in //Regent Taxi// that unjust enrichment was an institution of its own.

(554) Mayrand found action //de in rem verso// founded in equity. The recognition of unjust enrichment was found in article 11 CCBC (a juge cannot refuse to judge simply because the law is silent on a matter).

(555) Challies extends the broad articles 1041-2 CCBC to mean unjust enrichment is a third quasi-contract, innominate. The advantage of his explanation was to link unjust enrichment to an existing juridical institution rather than to the vague ideas of morality or equity.

(556) Morel argues that unjust enrichment exists rather through art. 2712 CCBC (ancient French law applies in Quebec as long as it is not incompatible with Quebec legislation).

(557) Jurisprudence under the CCBC never directly addressed the question of the origin of unjust enrichment, instead only citing it in obiter and never coming to one conclusion. Unjust enrichment has now been codified in the CCQ, and it's now an autonomous institution.

__**II. Conditions**__ (558) A certain number of material conditions (enrichment, impoverishment) and a certain number of juridical conditions (the others) must be met to have unjust enrichment.

__**A. Enrichissement**__ (559) The plaintiff must prove the enrichment of the defendant. The enrichment must still exist, must be certain and appreciable in money the day of the suing. Enrichment can take many forms, namely: services rendered by the plaintiff; material increase in the defendant's patrimony. The enrichment can be positive (increase in patrimony) or negative (loss or spending avoided, which would have been done otherwise). Certain authors think a moral or intellectual gain counts. It must, however, be able to be evaluated in pecuniary terms. It must also still exist when the action //de in rem verso// is put forward. A temporary enrichment is not enough.

__**B. Appauvrissement**__ (560) Enrichment is not enough. Impoverishment must be proven. Must be susceptible of pecuniary evaluation, and is calculated on the day of the suing and not on the day suffered. The impoverishment can be positif (decrease in patrimony) or negative (lack of profit - ex: service rendered but not paid for). Impoverishment does not apply when the plaintiff does a favour for the defendant without expecting remuneration.

__**C. Relation de cause à effet**__ (561) Parallel enrichment and impoverishment which occur by coincidence do not count. A link between cause and effect must exist between the two. One must have caused the other. This is not the traditional notion of causality (there is no need for the //causa causans// or the //causa proxima// of the enrichment), as in ECO. The notion is less rigorous here. It suffices to show a corrolation between the two. ie: The enrichment wouldn't have happened had there not been impoverishment. The enrichment need not pass directly from the plaintiff's patrimony to the defendant's - it can go through third-parties. Causality is a question of fact, left to the determination of courts.

__**D. Absence de justification**__ (562) "Absence de justification" is the preferred term to "absence to cause" (since 'cause' has so many meanings in law). Unjust enrichment is for situations where the enrichment was not foreseen, sanctioned or imposed by law. The enrichment must be without juridical reason - that is, without legal or conventional justification. The absence of justification is calculated from the perspective of the enriched person. Enrichment is justified in the situations outlined in:

1494CCQ: //Enrichment or impoverishment is justified where it results from [1] the performance of an obligation, from the failure of the person impoverished to exercise a right of which he may avail himself or could have availed himself against the person enriched, or [2] from an act performed by the person impoverished for his personal and exclusive interest or at his own risk and peril, or [3] with a constant liberal intention.//

(563) //[1] above// Enrichment whose source is in a legal obligation, a natural obligation or a juridical act is not unjust enrichment. Ex: a contract of sale where the seller makes money - seller can't claim unjust enrichment

(564) //[2] above// Ex: construction of a damn around my property which profits others is not the basis for a claim in unjust enrichment. If an act is conducted at the plaintiff's own risk and peril, that is a justification for impoverishment. This poses serious questions in certain cases, such as a wife who worked on the farm or for having done house chores.

(565) //[3] above// Impoverishment resulting from favours or free contracts are justified. Services rendered between parents are presumed free. She who acts based on an implicit or explicit promise can claim an action //de in rem verso// (see art. 1395 CCQ).

__**E Absence d'autres recours**__ (566) Action //de in rem verso// is a subsidiary claim. It an only be admitted when there is no other recourse in the law. Generally, if there is an absence of justification to the enrichment, then no other legal situation will cover these facts. However, the "absence of recourse" is another separate step. Art. 1494 CCQ states that enrichment is justified: //from the failure of the person impoverished to exercise a right of which he may avail himself or could have availed himself against the person enriched//

(567) Action //de in rem verso// exists to cover situations with no other remedies, and not as an alternative to other means of suing. Unjust enrichment cannot be claimed when the plaintiff had another legal recourse for which the date of limitation passed. The condition of no other recourses only applies to recourses between plaintiff and defendant, and not third-parties. So a plaintiff can claim unjust enrichment even if she has claims against third-parties open to her (1494 CCQ). Plaintiffs can invoke the action //de in rem verso// as a subsidiary action in a court claim - that way, if the principal claim fails, the judge will consider the subsidiary claim.

__**III. Effets**__ (568) Unjust enrichment obliges the enriched person to pay the impoverished person. The amount of money is calculated from the moment the suing occurs. If the plaintiff could claim the total enrichment when his impoverishment was less, he'd be unduly enriched. The same would be true if the plaintiff could claim all his impoverishment if that was superior to the enrichment.

Art. 1496 CCQ provides that the impoverished party can claim money from a third party ("ayant cause" of the enriched person) when the enriched party, without fraudulent intention, gave away freely his enrichment to a third-party, as long as the third-party was in a position to know of the impoverishment at the moment of his gain.

(569) There is no specific provision on a limitation date ("date de prescription") for an action //de in rem verso//. The general rule on prescription (2925 CCQ) would say 3 years, starting from the date that the action could be claimed.