The claim of the impoverished

Antonia Peeva
Antonia Peeva

There must be an unjustified property reversal between the giving and the receiving the benefit

The unjust enrichment stems from the Roman private law, as the main motive of the legislature for regulating the institute in ancient time, as well as nowadays, is the justice and the principle, prohibiting the unjust reversal of benefits. Every performance suggests presence of a debt and when it does not exist, there is no excuse to allow the enriched to keep the received. It should be returned to those who gave it.

Therefore, the prerequisites that must be proved by the claimant in case of unjust enrichment are: presence of impoverishment of the claimant, presence of enrichment of the defendant, connection between the impoverishment and the enrichment and lack of legal merits for the reversal. In case of absence of any of these elements, there will be no composition of unjust enrichment.

The modern legislation of unjust enrichment includes some separate claims available for the impoverished in order to protect their rights.

Firstly, these are the claims for returning the given without merits, because of lapsed merits or non-existing merits, when there is a direct connection between the impoverished and the enriched individual, i.e. direct performance between the two individuals. These are concrete active steps that lead to a direct property reversal between the giving and the receiving the benefit. The second major opportunity is the so called general claim, under which whoever has enriched himself without merits at the expense of another shall be liable for the return of the enrichment, up to the amount of the other person’s loss.

In this case the enrichment and the impoverishment are performed indirectly, the property reversal is not due to a direct subject consideration, but it can be complicated, as the obligation, arising from the relationship is for restoring a certain value – the difference between the impoverishment and the enrichment.


What is common in these hypothesizes, is the direct giving and receiving of a benefit and the lack of merits, the lack of a valid relationships between the giving and the receiving, on which base the material benefits can pass between them. The legislation provides that the absence of merits can occur in three different ways:

  1. In the cases of transmission, respectively receiving of something with an initial lack of merits, i.e. when there is no merit for transferring benefits from one individual’s property to another during the actual receipt. Initial lack of merits occurs when the transfer takes place without presence of any relationship between the parties. The most common example of giving something without merits is the performance on a void transaction, which suffers from such a defect from the beginning that does not lead to any legal consequences. When there is a payment under a contract for sale of a real estate, concluded in a simple written form, but not in the form of a deed, because of the invalidity of the contract the buyer has the right to bring an action against the seller to return the paid without merits. There is primordial lack of merits in the hypothesis of payment of the price as a result of adjustments to the accounts of the consumers carried out by the electricity companies. In these cases, the court finds that the calculated as a result of the adjustment amount is not payable and is accordingly not paid on a fitting merit, so that the consumer’s claims for returning these amounts are respected as legitimate.
  2. In the cases, when the performance is carried out in view of the expected future merit, with a view to a future goal, which has not taken place, it is assumed that the received is due to return because of an unfulfilled merit. This happens most often in transactions with deferment clause. Giving the benefit has been made after the conclusion of the transaction, but before the occurrence of the clause. In this sense, if the clause is fulfilled, then what is given, is without merits and it must be returned.
  3. There can be also giving on an unfulfilled merit, when it is performed under a preliminary contract. In a number of court decisions, the Court considers that the claim based on the claimed amount of return, received under the preliminary sale contract, which cannot be declared as final because of the lack of prerequisite, is founded, and the defendant shall be judged to pay the claimant the amount, as due to the unfulfilled merit. It is typical for the claim for returning the given because of lapsed merits that the merits exist at the time of giving, i.e. there is a valid relationship between the parties, on which base the performance is made and which justifies the property reversal, but then it falls down retroactively. The dropping of the plea can be due to various reasons – cancelling a contract due to non-performance, invalidation of a contract, if it is concluded by persons of legal incapacity, under mistake, fraud, threat, upon the occurrence of a deferment clause to the obligation, which is not performed, in performance based on an effective decision, which has been subsequently cancelled. There is performance under lapsed merits in those hypothesizes, when the obligation arises from an issued administrative act, subject to prior performance, which has been cancelled later by the court as unlawful. This cancelation according to the legal framework and the permanently established court practice is retroactive as it deletes retroactively the legal consequences. Therefore, an obligation arises under the law for recovering the respective benefit to the individual that performed under the repealed administrative act.

In conclusion, no matter which composition took place, an obligation arises for the individual to return the given to the other one. These claims have to be submitted before the court, before they are extinguished upon the expiry of the five-year limitation period, which runs from the day, when the taking in the different hypothesis has become due. It has to be mentioned that although in all cases for the successful implementation of the claim for returning the received without merits before the court, the impoverished, i.e. the claimant must prove the fact of property reversal between them and the defendant, while burden of the enriched, i.e. the defendant is to prove the fact, from which the claim arises, or with other words – the presence of merits.

When there are no elements of any of the three described compositions and there is no other possibility for any legal protection, but the property of a individual has been increased at the expense of another without merits, for the impoverished remains the possibility to claim that, what the other one has enriched himself to the amount of the other person’s loss.

The article has been published in Bulgarian, in Capital Daily.