Restitution in Greece
i. The clause-a secondary action?
The general clause of Art. 904CC provides that ‘every one who was unjustly1
at another’s expense or though another’s estate is obliged to return the enrichment.
This obligation exists especially in the cases of a performance not due or a
performance for a cause which did not continue, or a cause which ended, was illegal
or immoral.’ The obligation for the return of unjust enrichment is a general and an ex
lege obligation, a personal obligation stemming directly from the law. In this sense, in
Greece, unlike many other countries, unjust enrichment is the third most important
source of (all) obligations2. Restitution is, therefore, necessitated, because of the need
to conform to iustitia commutativa, commutative justice.
The prevailing opinion in Greece supports, despite the strong disagreement of
legal theory, that the claim for unjust enrichment is valid only when no other claim
exists to offer relief, for the particular set of facts. The letter of the clause does not
justify this view; it is much more not justified by the purpose of the institution. Art.
904CC does not include the non-availability of another cause of action into its
conditions; every rule of law is applicable once its conditions have all been fulfilled.
Perhaps that another cause of action exists has a consequence that the Art. 904CC
conditions are not fulfilled; for example, when a valid contract exists, and one of the
parties has not performed, the other party who did perform first is not unjustly
enriched by accepting the performance, because the enrichment is justified as coming
from a valid contract. But this is not an effect of the supposed supplementary nature
of unjust enrichment; it is a consequence of the lack of enrichment, which is
unjustified. Even in common law, where there is no such thing as a general clause of
the prohibition of unjust enrichment, as a cause of action in its own independent right,
the plaintiff is always allowed to waive a tort and sue in unjust enrichment, if she so
wishes (usually, when the return of the enrichment from the tort is more favorable
I should translate ‘unjustifiably’, in fact, but as the law of restitution always refers to unjust
enrichment, and not unjustified, meaning the same, I preferred the usual term of art in this case.
1
than damages for tortious losses). Another matter, which is in doubt, is whether the
directness of the transfer of the benefit (only between A and B) is also a (non-written,
again) condition of the claim. As there is nothing in the article on this particular
matter, this opinion should not be followed.
ii. Unjust enrichment-civil law, public law, common law
Unjust enrichment, no matter how closely related to contracts it may be, is not
just a means to achieve the reverse development of a failed contractual relationship
(‘give me back the money, I will give you back the product’), although many times it
is; nor is unjust enrichment another remedy to compensate for tortious losses (‘give
me the profits from the illegal use of my patent’), although, again, many times it is.
The law of unjust enrichment is more vague and distant from the more concrete
breach of contract, or tort cases: it orders the return of an unjustly gained enrichment
to the proper party-no more, but certainly no less, than this. Because of this general
nature, we see unjust enrichment invoked not only in sets of very different
circumstances (from the classic return of money paid under a contract which was
terminated, to the return of gains immorally made, though another persons’ labor etc),
but also, in different laws: both in private and in public law (that is, a suit for the
return of a quashed fine by a public authority, will also be based in unjust
enrichment). Jurisprudence has accepted this clear surpass of the clause and its
application in public law relationships, after a period of doubt 3; today, a great number
of cases from the administrative courts accept that the rule against unjust enrichment
exits and bears legal consequences in public law too4.
2
Stathopoulos, The Claim for Unjust Enrichment, 1972, the classic wonderful monograph on the
subject, p. 28.
3
Stathopoulos, Law of Obligations, 1998, 317.
4
Pavlopoulos, Unjust Enrichment in Public Law, at the Border of the Relations of Public and Private
law, NoB 1998, 2, p. 10. Pavlopoulos attempts to prove that the material disputes of administrative law
dictate other kinds of legal solutions than unjust enrichment and restitution. It is, however, better to
accept unjust enrichment as a cross-laws clause, since there is no reason to support that an
administrative authority, which had mistakenly imposed a fine, should be treated differently from a
private party, who received an undue debt. The set of facts is the same: the mistaken transfer of a
benefit, necessitating its return. Unjust enrichment situations are not influenced from the fact that one
of the parties is a public person, even when acting as a public person (exercising public authority); if
this is so, the public person has the burden to prove why it deserves a special treatment (in this case,
Stathopoulos, id, proposes the application of Art. 904CC by analogy). I believe that it is very
comforting, in a perplex system of laws, to accept and apply some general principles as Art. 904CC in
every situation where it is just, and no other special regulation may help a litigant. One may only
remember the days in Greece when not even the competence of civil and administrative courts was not
From the comparative law point of view, restitution is never a substitutionary
remedy, so that a plaintiff may ask for the restoration of money paid, for example, as
a better choice from compensatory damages. Restitution is not an end (‘because of
this-a breach of contract, a tort, other causative event etc, I ask for restitution’), but
the beginning (‘because you were unjustly enriched etc, I ask for the return of the
enrichment’). Restitution, therefore is not a legal consequence of a breach of contract
or a tort, it is not an ‘option’, as a preferable measure of damages; the plaintiff is not
allowed, not explicitly at least, to waive the tort5 and sue for restitution. Unjust
enrichment is a cause of action in its own right; one of the three main grounds of
damages in the law of obligations. There is absolutely no need to stress in Greece, as
there is in the common law, that there is an unjust enrichment policy behind all
restitutionary actions6, for in Greece, because of Art. 904CC, we need no reference to
policy.
Quite apart from this important difference, the focus is the same in our law
and in common law: the law forces a party to disgorge the gains-actions for restitution
have for their primary purpose taking from the defendant and restoring to the plaintiff
something to which the plaintiff is entitled, or if this is not done, causing the
defendant to pay an amount which will restore the plaintiff to the position he was
before the defendant received the benefit. This principle, the main theme of the
American Restatement of Restitution, because I did no more than copying it from the
Restatement, could be easily written in the Introduction to the law of unjust
enrichment, written by a Greek scholar. And it is very interesting to compare the six
major counts of the claims for restitution, as they were established in the pleading
forms of the common law (actions for money had and received, money paid for the
benefit of the defendant, goods sold and delivered, work and labor performedquantum meruit- and value of the product-quantum valebat), to the Roman
sharply defined, and how a statute, many years after cases were systematically thrown out of both
courts, one after the other, for lack of competence, came to remedy the matter. Looking at the system
from a big distance and under the light of equity and stability supports the direct application of the
clause of Art. 904CC in whatever law it may apply. Besides, ‘..finally, law and order form one entity.
And it is a legal reality, that the Civil Code as an old and general law, contains rules surpassing the
limits of civil law, in which is possible to co-estimate matters of public interest…’, Stathopoulos, Law
of Obligations, 1998, 318.
5
As a standard rule, in common law, whenever a tortfeasor wrongfully takes, uses, withholds or
disposes of the property of another, the victim has an action for conversion-however, as a plaintiff, he
also has the option of waiving that tort and suing in assumpsit (today, in unjust enrichment) to prevent
the unjust enrichment of the defendant tortfeasor. Of course, the only case where this is a good idea, is
when the defendant’s gains are to be reached
condictiones, for unjust enrichment, as they are still sometimes cited in the Greek law:
action (the Roman condictio) for a cause which did not continue (condictio causa data
causa non secuta), for the return of a mistakenly paid debt (condictio indebiti), for the
return in the case where there was no cause (condictio sine causa), for the return in the
case where the cause was unjust (condictio ob turpem vel iniustam causam), for
money for services rendered (posse condici, quandi operas essem conducturus) etc.
Such a comparative analysis, in detail, would reveal that it is the same sets of facts,
which leads to the application of the rule of the return of unjust enrichment, somehow
differently classified, but still the same.
What is certain is that, while in England, at least, and with some reservation,
also in the US, the principle of restitution has not yet formed a clear part of the law7,
in its own right, there are some tendencies towards this direction. We see, though, in
the American textbooks, ‘restitution’ (this is the central point, and not ‘unjust
enrichment’) analyzed as a part of the law of remedies as a remedy for a tort/wrong
(especially for duress, unconscionability, undue influence etc), for a contract (for
example, for a vendee’s breach, for a contractor’s breach, for breach by employee, for
all unenforceable contracts etc)-we do not see restitution, as a remedy for (all the
whatever cases of) unjust enrichment. This is, however, the case in Greece. In
continental Europe, the principle against unjust enrichment is good law, and is based
upon a. enrichment b. another’s expense/loss and c. no justification, conditions which
sustain a claim for the return of the benefit. I turn now to the analysis of these
conditions.
iv. What is ‘enrichment’-when is an enrichment at another’s expense, or though
another’s estate
The law of unjust enrichment aims at the return of a financial benefit, and not
at the return of a specific thing or money. What is important is not the economic
value, embodied in an object, but an estate in its general state. The institution covers
property increases and decreases of any nature whatsoever, and not only those
effectuated with the transport of a particular thing. Even when the enrichment was the
result of the use of benefits, which do not have a physical and tangible existence (use
6
O’Connel, Remedies, 1985, 76.
of another’s labor etc.), in all these cases, what is finally critical is the value, as a
financial magnitude, of these benefits. Enrichment is every amelioration of a person’s
the status of property. The court will not focus only on the particular acquisition, but
on the comparison between the property status before and after this acquisition. So, a
person may have acquired ownership or possession of a thing, may have acquired a
claim or another right (even a formative right, or an expectation right), with the
reservation that what was acquired, had a financial value. The enrichment is not
confined, though, to the ‘prison’ of rights (I include here the acquisition of things,
because it is the right to a thing which is legally valuable, and not the thing itself); a
beneficial legal or real status, as the acquisition of clientele, also comes under the
definition of ‘enrichment’. The release from an obligation (for example, the valid
payment of another’s debt) is also an enrichment. The avoidance of costs forms a
large class of Art. 904CC actions; for example, the use or consumption of a thing
belonging to another, the exploitation of another’s work, the use of another’s right or
thing etc. But the avoidance of costs has to be real, in the sense that the defendant
would incur the costs claimed as unjust enrichment. This is a question of fact.
Lack of legal cause. The benefit claimed must have occurred without a legal
cause, which would justify its remaining with the defendant. Cause here is much more
general, as a concept, than causal connection we see in the classic tort cases. A cause
is a fact, which in itself justifies the final keeping of a benefit. The sources of this
justification are three: a. the donor’s will (a gift; a contract of sale, and the relative
performances etc) b. consideration offered in return of a benefit and c. the law (in
some cases, the law designates some benefits as just).
‘Moral’ benefits, intangible and imposed enrichment. Unjust enrichment is an
institution primarily dealing with the return of benefits having a financial value, to the
degree that this value is subject to measurement. Other ‘moral’ goods, as, for
example, health, freedom, amusement etc are not subject to a claim for unjust
enrichment-there are other Civil Code provisions, more suitable for the relevant
claims8. One should not confuse, though, the concept of the return of purely moral
benefits, unjustly acquired, with the concept of ‘intangible’ enrichment, as is, for
example, the enrichment of the use of another person’s services. The enrichment does
7
The Restatement contains general guidelines and not rules of law.
Stathopoulos in ErmAK, Art. 904CC, 4, who nevertheless, leaves the door open for the application by
analogy of Art. 904CC for a claim of the return of these moral benefits.
8
not have to be tangible in any way; intangible benefits have a financial value, when
they represent, for example, the saving of costs. Crucial is, however, the enrichment,
which was real and concrete, not the enrichment that a person was able to obtain but
failed to do so. Acquisitions, which offer a real, financial opportunity to gain, are
crucial, and not those, which could represent a financial gain, purely theoretically.
The matter of ‘imposed’ enrichment, which is the enrichment allegedly, imposed
upon an innocent party, by an officious intermeddler, is not easy to resolve. The rule
remains, of course, that an enrichment not sustained by a legal cause, a just cause, in
principle should sustain the claim. The focus is whether the defendant was enriched,
because in many cases, the claim will be defeated, not because the enrichment was
imposed, but because it did not exist at all: the alleged saved costs, for example, were
not costs that the defendant would incur anyway, etc. The lack of enrichment
invalidates the claims. The judge, though, should have the discretion to impose upon
the enriched party the obligation to a sacrifice analogous to the meaning of the benefit
received, using as compass the mission of the institution of unjust enrichment9.
A last note here is, though, that in cases where the court orders the return of an
‘imposed’ enrichment, an enrichment to which the plaintiff had never consented to in
any way, the court should, I believe, take into account other interests harmed with the
imposition of the enrichment, apart from the purely and objectively monetary ones.
By this abstract statement I mean that, if, for example, I build a house upon your land
and then sue you for your ‘imposed’ enrichment, what I, as a person and a free citizen
of this State, wanted to do with my land, cannot be irrelevant to the action. Perhaps
you built a house at a style, which I absolutely hate; perhaps you built a swimming
pool, but I cannot swim; perhaps I never wanted to build a house there anyway, but a
golf club. So, this is a clear case where the real and the unwanted amelioration of
another’s property clash10.
One way to resolve this is, as above, to claim that this is not an enrichment. In
some cases, though (suppose one built an absolutely wonderful house, definitely
ameliorating the land in money terms) it would be irrational to claim that there was no
enrichment (objectively). Another, conceptually better, I believe, way, is to balance
the true amelioration of the plaintiff’s financial status with the harm to the plaintiff’s
9
Stathopoulos, id., 16.
Kotzabasi, The Claim for Unjust Enrichment in the Cases where the Enrichment is Imposed, without
the Recipient’s Consent, Nomos, Scientific Yearbook of Athens Law School, ar. 4, p. 309 311.
10
interests in freedom of choice-specifically of the choice what to do with her own
property (balance of the injury to personality, because of the injury to choice, under
Art. 57CC11 and promotion of financial status). The very word ‘imposed’ enrichment,
as a term stabilized in the law of unjust enrichment, embodies the undisputable fact
that a person’s freedom was violated, as the Constitution protects individual means
and possibilities of all people, as their own12. Perhaps, this dimension of the problem
should not be overlooked. One thing is certain: the judge in these cases, after the
examination of the facts of the case, should have the discretion to tailor the award,
using as tools the general principles of civil law-the principle of good faith, the
prohibition of the abuse of rights etc. And the degree of the defendant’s fault here,
contrary to the usual rule (irrelevant), is certainly a factor determining the quantum of
liability in ‘imposed’ enrichment cases. This would conform to the overall mission of
the institution of unjust enrichment, to the demands of commutative justice.
v. ‘Surviving’ enrichment
A usual defense to the claim of unjust enrichment is that the defendant does
not ‘have’ the enrichment any more, at the time when the claim was filed. The
defense is based on Art. 909CC, which states that the enrichment may be claimed,
only if, and in so far as, it exists, as it was, or under the form of a benefit given in
return for the enrichment, which benefit replaced the initial enrichment. This peculiar,
at the first sight, rule, is however justified, as the lawmaker wishes to stress, that it is
not the acquisition of enrichment that is crucial in these cases, but the enrichment
itself13. Equity dictates that the recipient in good faith is no more liable to return an
enrichment she did not know was unjust, after she is not any more enriched. The
safety valve of the condition of good faith here ascertains the justice of the rule. An
enrichment may not survive, not only in the cases where, for example, the money was
spent, but also when the total estate of the recipient suffered a loss.
An enrichment does not survive, when it is offered to a third party, as a gift
(Art. 913CC). If the recipient did not receive anything in return for the enrichment
11
On freedom of choice and Art. 57CC (personality), see Canellopoulou-Bottis, Informed Consent
Medical Liability in Greek and Common Law, 1999.
12
‘…Even if a person did not want, or could not realize these means or possibilities (to gain
financially), they still belong to her. Third parties intervening in this legal and financial sphere of
influence, gain through another’s means..’, Stathopoulos, ErmAK, id., 20.
given, and also did not save expenses, which she would have incurred (in this case,
she is still ‘richer’, as she saved costs), then there is no enrichment to return. The
recipient defendant is entitled to offset all costs incurred because of the acquisition
and keeping of the enrichment: for example, the recipient defendant is entitled to
deduct the costs of the maintenance of a house, or the extra costs of travel incurred,
because, due to the enrichment, she believed she was richer and she was in the
position to spend extra money for pleasure.
vi. Cases of heavier liability of the recipient
Articles 910-912CC provide for the cases where the recipient defendant is not offered
the favorable protection described above, mainly because of the recipient’s state of
mind, which allows for a different liability. So, after the claim is filed and notified,
the recipient is fully responsible for the enrichment (Art. 910CC). Also, after the
recipient learnt that the debt paid did not really exist, the recipient is liable for its
return (Art. 9133, sec. 1). The provision means positive knowledge, and not culpable
ignorance that the debt was not valid. If the cause of an enrichment was illegal or
immoral, then the recipient is fully liable (under the general provisions of Art. 346
and 348CC). In this case, positive knowledge or culpable ignorance are irrelevant. If
the claim was founded upon a cause, which did not ensue, or ended, the recipient is
fully liable from the moment the recipient should have foreseen that the enrichment
was returnable (Art. 912 sec. 1). The provision presupposes positive knowledge, or
negligent ignorance of the recipient, that the enrichment could be claimed. Negligence
will be judges objectively (would a reasonable person foresee the possibility of a
claim).
All the above rules embody the ratio that, a recipient in bad faith, that is a
person who could or should diagnose that there is a chance that the enrichment
received could be claimed, should treat the enrichment very carefully, as it it did not
belong to her. It is also supported14 that these articles may be applied by analogy, in
all cases where the same reasons (knowledge of lack of a legal cause to keep a
benefit) dictate a heavier than usual liability for unjust enrichment.
13
14
Stathopoulos, ErmAK., id., Art. 909CC, 1.
Stathopoulos, id., Art. 910-912, 6, Georgiadis, Law of Obligations, id., p. 573.
The consequence of the above is that the survival, or not, of the enrichment is
irrelevant to the claim for its return; that if the enrichment is money, interest is owed;
if the enrichment is a thing, the recipient is liable for it deterioration etc, for all fruits
of the thing, even those that the recipient could but did not collect; finally, the
recipient’s right to an offset of costs incurred is severely limited.
vii. Third parties as recipients from the original recipient
Art. 913CC deals with the liability of a third party, which was the final
recipient of an unjust enrichment. As the claim for unjust enrichment has a limited
personal character, in the sense that the link is not restricted between the two original
arties involved (as in contract cases, for example), the plaintiff may follow the
enrichment even if it ‘ended’ up in the hands of a third party. The conditions, though,
are somehow strict: a. that the original recipient is not liable for the return of the
enrichment (prevailing opinion)15 and b. that the third party received the enrichment
under a gratuitous transfer. If not, that is, if the third party paid, or offered
consideration for the claimed enrichment, the action will fail. Gifts and inheritance
fall within the term ‘gratuitous cause’ of the article.
viii Cases
The Athens Court of Appeals heard in 1987 a case of a public person, the
Organism for the Public Schools Buildings, against a person who had used one of its
plots of land as a parking lot, without any right whatsoever. He received money for
the parking of around 270 cars every day. The Organism sued in unjust enrichment
and asked, inter alia, for the return of the profits made through the use of its land. The
Court held that, as the Organism did not have the legal ability to rent the place as a
parking, because the legislation allowed the Organism to deal only with the erection
of school buildings, there was no causal connection between the arbitrary use and the
profits, so this claim failed; the Court allowed a claim for the rents the defendant
would pay to the Organism, had he legally rented the place16. In 2001, the Supreme
15
There is a doubt, concerning this condition, as it is also supported that the claim is possible, even if
the original recipient can be sued too.
16
AthensCA 2073/1987, HellDni 29 (1988), 550.
Court held that in cases where the reversal of a sale is ordered, the return of the
money paid under the contract will be claimed through the contractual cause of action,
but any surplus, not mentioned in the text of the contract (‘black money’, to avoid tax)
is returnable through unjust enrichment17. If any contract for work is invalid (because,
for example, the worker did not issue a health booklet, as the law requires, or the alien
worker did not have the permit to work in Greece), the worker may ask for the wages
through the unjust enrichment clause18. After the prescription of a claim for the
ejectment from a realty (one year), the plaintiff may ask for the restoring of the
possession to him under Art. 904CC19.
The plaintiff, in another recent case, sued for the value of a car ‘gained’ at a
lottery by another member of the party, in which he had a number, which won, but
was subsequently invalidated. The Court held that unjust enrichment was the proper
cause of action, but agreed that the invalidation of the lottery ticket was legal and
dismissed the claim on the merits20. In another case, in Thessalonica, the plaintiff,
who lived for a number of years as a prostitute, sued her ex-boyfriend, with whom she
had lived for a while and had a child from, to recover money paid to him by force, in
exchange of ‘protection’. The man, who had promised to marry her, but was
subsequently found to be already married to another woman, had extracted various
amounts from the plaintiff, to buy realty (claiming that afterwards he would transfer it
to their child, which never happened) and to buy antiques and ancient coins. The
Court held that this reason is an immoral cause to keep a benefit, under Art. 904CC
(citing older cases from the Supreme Court) and ordered the return of money paid.
The Court, most notably, dismissed the claim that, since immorality ‘touched’ both
parties, the money should not be returned21. In 2000, also, money paid to cover a
cheque given, with the promise that the recipient would leave the place of an auction
and not take part in it, was ordered to be returned under Art. 904CC22, as the ‘contract
not to participate’ was held invalid, as against good morals (Art. 179CC). Other cases,
where the lack of a formality invalidated a contract, were decided as unjust
enrichment cases, in so far as they ordered the return of money paid under the
17
AP 524/1001, Nomos, 2002, 1.
AthensCA 2976/2001, DEE, 2001, 1158; PireusCA 497/2000, D/ni 2001, 789.
19
AthensCA 352/2001, D/ni 2001, 809.
20
Rhodes OneMember DC 35/2001, Nomos.
21
ThessCA 810/2000, Harm 2001, 319.
22
LeukasOneMemberDC 178/2000, Nomos.
18
(invalidated) contract23. The sale in an auction of a realty, which had, however,
become a thing of common use (‘κοινόχρηστο’) signified a legal defect of the thing
auctioned and the buyer sues for the return of the money paid under Art. 904CC24. In
many cases, the law itself states that benefits etc are returnable under the rules of
unjust enrichment; such is the case of an engagement, which was annulled, and the
gifts offered because of the engagement25. The Supreme Court dismisses a claim for
money as wages, because the plaintiff used to go every day and help his ex-wife’s
business (a business where more were partners), at times when she was not there,
because the courts found that he had offered his services freely and with no
expectation to be paid; besides, the business had its own employees for the same
tasks, and did not need his services26. Generally, jurisprudence on unjust enrichment
is really rich.
A special matter is claims by persons who lived with other persons, but who
were never married, for various reasons. These people are considered to live in a ‘free
union’ (ελεύθερη ένωση). The problem occurs, of course, when the couple separates,
or even, when one of the cohabitants dies. In one case in 1993, the Supreme Court27
held that the woman, after the man died, did not have any rights to his property, after
20 years of cohabitation. She had framed her case as a claim for services rendered,
under Art. 904CC; the court held that there was no mutual understanding that
something was owed for these services, that the man never treated the woman as his
domestic helper, but had paid all necessary costs for their common living. The man’s
heirs were allowed to the total of his inheritance; she was left with nothing. Another
way to achieve some positive results for the women freely living with men was to
invoke the application by analogy of Art. 1400CC, the article instituting a claim to a
part of the acquisitions during a marriage. At least one court ahs dismissed this
proposition, ruling that in the case of people freely living together, the only
sustainable claim is the claim for unjust enrichment28; another court accepted the
analogy29. The practical difference between the two claims is great: there is no need to
prove the unjust nature of the enrichment, under Art. 1400CC, as there is under Art.
23
PireusCA 539/2000, Pireus Jurisprudence 2000, 343, sale of a vessel, written form not kept.
AthensCA 436/2000, D/ni 2001, 1378.
25
AthensCA 2829/2000, Nomos.
26
AP 180/2000, Nomos, 2000, 1.
27
AP 351/1993, NoB 42, 998.
28
KozaniOneMemberDC 204/1999, NoB 48, 2000, 1446, comment by Efi Kounougeri Manoledaki.
29
RhodesOneMemberDC 206/1991, HellDni 36, 725.
24
904CC and the plaintiff is also burdened to prove how much of the estate was due to
her own contribution (for Art. 1400CC, there is a presumption of contribution up to
1/3 of the net increase of the property). As usually people who live together, but are
not married, do not wish that their partner is treated unjustly after they die, the courts
should prefer in these cases the special rule of Art. 1400CC30.
30
See Kounougeri Manoledaki, id.