The Sad Future of Unjustified Enrichment in Brazil: Criticising the Brazilian Civil Code Reform

João Costa-Neto*

Abstract: Brazil’s current Civil Code is going through a legislative overhaul. As concerns unjustified enrichment, a comparative review of notably German and the common law reveals three of the reform’s shortcomings: (a) it failed to develop or propose a Brazilian taxonomy on unjustified enrichment law (and to comprehend and elaborate on its rationale); (b) it neglected to determine the measure of restitution in cases of unjustified enrichment by infringement of another’s right (reasonable fee or disgorgement of profits?); and (c) it proposed a redundant and implausible dies a quo (commencement date) for interest rates in cases of unjustified enrichment. While the Brazilian Civil Code should undergo comprehensive reform on unjustified enrichment law, the current proposals are heading in the wrong direction. Just as Brazilian legislators should seize the opportunity to correct old mistakes, they should avoid rushing into making several new ones.

(2024) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

I. Brazil’s very crude – almost non-existent – unjustified enrichment law

Brazil’s current Civil Code, enacted in 2002, comprises very few provisions on unjustified enrichment. It failed to substantially improve on the model adopted by the former 1916 Brazilian Civil Code.[1] The Brazilian legal scholar Clóvis Beviláqua drafted most of the 1916 Civil Code. He single-handedly wrote its initial draft (Projeto primitivo) and directly participated in the subsequent stages of the discussion. Most of what he wrote made it into the final version.[2] Beviláqua was the driving force and mind behind the 1916 Civil Code.[3]

Jan Peter Schmidt, writing about the Brazilian Civil Codes of 1916 and 2002, acknowledged the significant influence that pandectism and the newly passed German Civil Code (BGB) exerted over Beviláqua. His first draft of the 1916 Brazilian Civil Code – the first in the country’s history – was submitted in 1900, the same year the German BGB came into force, approximately four years after its enactment in 1896. And yet Beviláqua impressively kept up with part of the codification debates in Germany and drew on some of the BGB ideals.[4] Before him, Teixeira de Freitas had also been heavily influenced by the pandectist writings of the 19th century.[5]

But that was not the case with unjustified enrichment. Skeptical about unjustified enrichment as a legal category, Beviláqua resisted enacting any provision on the matter. He essentially followed the approach of the French Code civil.[6] But Beviláqua‘s view was already outdated in his own time. The law of unjust enrichment has been recognised as a distinct body of law, coeval with contract and tort, at least since the 16th and 17th centuries.[7] In 1892, a general law of enrichissement sans cause extending beyond the provisions of the Code civil had already been recognised by the French courts.[8] Moreover, when the French Code civil was reformed in 2016, one of the main goals was to modernise the rules on enrichissement sans cause.[9] France has moved on. Brazil has not.

In fact, the few provisions about unjustified enrichment in the current 2002 Civil Code (arts. 884, 885 and 886, Brazilian Civil Code) are considerably confusing and laconic, with no equivalent in the 1916 Civil Code. And yet Beviláqua‘s approach has an enduring effect. The current provisions are brief, unclear and insufficient.[10]

What makes this particularly odd is the strong Roman Law tradition that otherwise pervades Brazilian private law. The Roman law on unjustified enrichment and its condictiones – the origin of German law’s Kondiktion – are known for their legal sophistication which is reflected in neither the existing nor the proposed Brazilian law.[11] The current situation also contrasts with the trend of Brazilian courts relying on serious comparative arguments.[12]

The existing statutory provisions have resulted in a profoundly confusing case law. The Superior Court of Justice, Brazil’s highest court in private law matters, almost exclusively relies on the so-called ‘unjustified enrichment principle’ – a principle found solely in the court’s own precedents – to determine the amount of non-pecuniary damages (Schmerzensgeld, personal injury compensation, hedonic damages[13], etc.).[14]

Unjustified enrichment law is generally not even taught in Brazilian law schools. The Portuguese equivalents for ‘law of restitution’, ‘unjustified enrichment law’ or ‘Bereicherungsrecht’ – Direito Restitutório or Direito do Enriquecimento sem Causa – are almost non-existent and barely used, if at all, in Brazil.[15] Additionally, it is not a field of law or a subject in law school curricula.[16] Many legal claims that would typically be classified as unjustified enrichment in Germany or the UK are discussed and adjudicated in Brazil as if they arose from tort law.[17] One Brazilian legal scholar holds the view that unjustified enrichment is merely a branch of tort law.[18]

Beviláqua’s approach has proven consequential over the years. Then, a Civil Code Reform Committee was given the opportunity to replace his ideas with something better.

II. Brazil’s Current Civil Code Reform

A legislative overhaul of Brazil’s 2002 Civil Code is currently underway, with every aspect of the code under examination. In principle, any change is possible. As a result, a unique opportunity has presented itself to modernise the Brazilian Civil Code and enhance its provisions on unjustified enrichment. Curiously, this part of the reform has been attached to the reform of tort law.

The latest Civil Code Reform, which began in 1969 and ended in 2002, took almost 33 years to complete. The current Civil Code Reform, which started less than 8 months ago, has already seen its committee finish its work in less than 200 days. It took the committee from September 2023 to April 2024 to submit a complete proposal transforming the current Civil Code.

One might presume that the committee would propose numerous changes to the law on unjustified enrichment. However, that was not the case. And it should not come as a surprise, as the subcommittee on tort law was chaired by Nelson Rosenvald, the Brazilian legal scholar who views unjustified enrichment as a branch of tort law.

There are at least three reasons why the Civil Code Reform has failed so far in the area of unjust enrichment: (a) it failed to develop or propose a Brazilian taxonomy on unjustified enrichment law (and to comprehend and elaborate on its rationale); (b) it neglected to determine the measure of restitution in cases of unjustified enrichment by infringement of another’s right (reasonable fee or disgorgement of profits?); and (c) it proposed a redundant and implausible dies a quo (commencement date) for interest rates in cases of unjustified enrichment.

III. Proposing a Brazilian taxonomy on unjustified enrichment law

Categorising unjustified enrichment cases may aid in gaining a better understanding, highlighting differences or similarities, elucidating their legal grammar and structure whilst organising concepts. German law encompasses two primary categories: unjustified enrichment by performance (Leistungskondiktion), also known as enrichment caused by an act of the claimant, and unjustified enrichment by non-performance (Nichtleistungskondiktion). The main example of non-performance enrichment is called unjustified enrichment by intervention or enrichment by infringement of another’s right (Eingriffskondiktion).[19]

This famous Leistungs- und Eingriffskondiktion divide derives from the BGB (§ 812, BGB), but it has been questioned by Gerhard Dannemann.[20] He also presents the German framework as a bundle of at least six other models of restitution which exist outside of § 812–822, BGB — special cases of unjustified enrichment, one may call them.[21] It is an idea that should find some parallel in Brazilian law if unjustified enrichment becomes a real part of the Civil Code.[22] It is analogous to the participatory and non-participatory enrichments defined by Peter Birks, who drew his inspiration from the German model.[23]

German law is renowned for its intricate rules on unjustified enrichment, which could have proven helpful to the Brazilian Civil Code Reform. Many of the challenges German law attempts to address mirror those faced by Brazilian law.[24]

Daniel Visser emphasises the significant differences between common law and civil law regarding enrichment liability involving more than two persons.[25] Accordingly, English and German laws offer different approaches. What the Brazilian Civil Code Reform demonstrates is a complete ignorance of the debate on unjustified enrichment in Europe.

For instance, Peter Birks advocated that English law should abandon the unjust factor outlook (which he had previously helped to make dominant in modern English law) in favour of the German absence of basis criterion.[26] Nonetheless, his idea faced heavy criticism.[27] Looking at both English and German law could have provided a broad and more comprehensive view of many legal problems. Brazil’s current Civil Code entirely lacks categories of unjustified enrichment.

Until very recently, hardly any Brazilian legal scholar discussed unjustified enrichment by intervention or enrichment by infringement of another’s right (Eingriffskondiktion). However, a case arose in the Brazilian Superior Court of Justice (STJ), compelling the court to consider new categories to render a sound decision. The STJ is the Brazilian equivalent of the German Bundesgerichtshof (BGH), the Italian Corte di Cassazione, the French Cour de cassation or the UK Supreme Court. The case in question involved a prominent Brazilian actress, whose image was used without her consent by a drugstore chain for a major advertising campaign.[28] This situation bears a strikingly resemblance to the German ‘Paul Dahlke’ case.[29]

The current Brazilian Civil Code, like its 1916 predecessor, only mentions indebitum solutum as an example of unjustified enrichment (art. 876). It did include a general provision on unjustified enrichment (art. 884), but the legal mindset did not change. The Code remains silent about enrichment by infringement of another’s right. Rodrigo da Guia Silva asserts that the ‘historical development of the prohibition against unjust enrichment in Brazilian law could be summarised as the “chronicle of a discredited legal concept”’.[30] This highlights how understudied and underappreciated unjustified enrichment is in Brazil.

Case law is even more confusing and filled with misunderstandings. Two examples can illustrate this. In the Prada case, the Brazilian STJ completely confused unjustified enrichment with damages for a non-pecuniary loss (such as the German Schmerzensgeld or an English award for pain and suffering).[31] In the Camarões v. Coco Bambu case, a small restaurant accused a large restaurant chain of unfair competition and trade dress violations. The Court of Appeals and the STJ dismissed the case because no damage was proven. But that simply misses the point. The small restaurant claimed a right to the disgorgement of profits, not damages for injury to its reputation or property. The STJ decision is still not final; hence, the case remains pending.[32]

The state of current Brazilian private law is appalling. Brazilian lawyers have not only ignored much of the international scholarship on unjust enrichment but have also failed to apply or understand even the principles established by Roman jurists. Indebitum solutum is just one of the many condictiones known to Roman law.

Comparative private law helps us weigh the pros and cons of diverging solutions which have been implemented by different legal systems. English law should have been of great significance to the committee’s task. As I argue in a recent book, British legal scholarship on the disgorgement of profits could be very beneficial in addressing some of the issues Brazilian courts have adjudicated.[33]

The relationship between unjust enrichment and intellectual property, including trademarks, patents and unfair competition, has been thoroughly examined in Germany for more than 100 years. One of the seminal articles on the subject was published in 1909 (!) by Fritz Schulz.[34]

Schulz identified many similarities in cases of enrichment by intervention (Eingriffskondiktion) and proposed similar solutions to the problems arising in such cases, given their shared structure.[35] The current Brazilian Civil Code fails to identify enrichment by intervention as a category of restitution, thus missing the bigger picture. There is a whole set of relevant and intricate legal controversies that Brazilian legal scholarship does not properly recognise.[36]

To be fair, Nelson Rosenvald’s view was partially influenced by common law. After having spent time researching in England, Rosenvald wrote a book which argues that unjustified enrichment is merely a branch of tort law.[37] To a common law lawyer, it is not evident, for example, that ‘restitution for wrongs’ is part of unjust enrichment. Disgorging or stripping away gains from a defendant who has committed a wrong (e.g. tort, breach of contract, breach of fiduciary duty or breach of confidence) falls into the ‘restitution for wrongs’ category. In Germany, like in Brazil, there is no such difference: enrichment by intervention (Eingriffskondiktion), considered a part of unjustified enrichment law, encompasses what in England is normally called restitution of wrongs.

So, from the common law perspective, it becomes more understandable that restitution for wrongs is treated as part of the reform of tort law. But at least two problems remain with Rosenvald’s view. First, he generalized the idea to any type of restitution belonging to tort law, including all of what in English law forms part of unjustified enrichment. Second, his idea would transplant a common law idea – namely, that restitution for infringement of rights belongs to tort law – to a civil law country. Germany, as mentioned, includes restitution for wrongs in the realm of unjustified enrichment, mostly under the Eingriffskondiktion umbrella. Even countries that do not explicitly rely in the Eingriffskondiktion follow the same idea: Italy and Portugal, for example.[38]

I am not unaware of those who deny the autonomous nature of unjustified enrichment. It has been repeatedly recognized that unjustified enrichment is related to other areas of law which handle restitution situations. In a Festschrift in homage to Bonfante, Ernst Rabel already noticed the recurrent use of related or kindred legal concepts (verwandte Instituten) to solve unjustified enrichment problems.[39] In a similar vein, Ernst von Caemmerer has written about the ‘relatedness’ or ‘kindredness’ of the problems in tort law and unjustified enrichment (die Verwandtschaft der Probleme im Delikts- und Bereicherungsrecht).[40]

Others go much further. Nils Jansen, for instance, believes that unjustified enrichment will ultimately collapse into contract law or similar obligational claims.[41]

As Jansen has noticed, there is a particular German dimension to this argument because of the principle of abstraction (Abstraktionsprinzip), whereby the agreement which creates an obligation is distinguished (abstract) from the agreement which disposes of a right, such as transfer of property in the house, or in the money, under a sales contract. So, in Germany, unjustified enrichment plays a special role, tied to the idea that each transaction is independent from one another (Trennungsprinzip) . If I pay a certain amount for a house in Germany and the sales contract is void, this will in itself reverse neither the transfer of the house nor the payment. The restitutionary claim is what allows me to get my money back. That perspective would support Jansen’s proposition that all this is really about contract law.

Claus-Wilhelm Canaris rejected Jansen’s proposal for a different reason, namely because delictual obligations also give rise to restitutionary claims.[42]

And yet Canaris did not criticise what seems crucial to me: many parts of unjustified enrichment are simply not contractual obligations. Calling them so would be more than oversimplifying: it would be a misunderstanding of the legal problem. In England, restitutionary claims arising from tort law fall into the restitution for wrongs category. So enrichment by intervention is nothing but tort law, one could think. In principle, Jansen could, therefore, be right. But that is not the case.

The Leistungskondiktion example of a mistaken bank transfer cannot be reconceptualized to a contractual obligation. Two people that never saw each other, never communicated with each other and that do not even know one another are not in a contractual relationship. If I transfer money by mistake (e.g., by a typo in the account number) to someone I do not previously know, what arises is a purely restitutionary claim. There is no contract involved. Neither is it a tort.

Unjustified enrichment comprises autonomous claims, in the sense that they are not reducible to contract or tort. They share specific characteristics which are present in neither contracts nor torts.

Imagine I left my car at a garage for a few days for repairs. One night, the mechanic takes my car for a joyride. He enjoys the night, goes out with friends and uses my car. The car is not damaged in any way, and the mileage does not increase by any significant amount. The market value of my car remains unaffected. Was there any damage? The answer is no. Because no damage occurred, in the civil law tradition, it cannot be considered a tort. But I still have the right to demand restitution from the mechanic (or, in vicarious liability from the owner of the garage) — for the enrichment which the mechanic experienced at the expense of my property.[43] This liability is neither contractual, nor tortious, but arises in unjustified enrichment.

Like Jansen in Germany, Robert Stevens recently sparked a lively debate[44] in the UK with his book The Laws of Restitution. Stevens thinks there are ‘seven or eight different kinds of private law claim, none of which have anything important in common with another’.[45] The title of the book — ‘the laws of restitution’ — indicates that no unified subject can accurately be described as restitution of unjust enrichment. A detailed analysis of Stevens’ ideas is beyond the scope of this article. But a few words can be said.

First, I am not sure there are so many kinds of restitutionary claims. I do think the Leistungs- and Eingriffskondiktion divide sums up a relevant chunk of them, but these do not necessarily form parts of one unified subject, perhaps more of a family resemblance. However, the Leistungskondiktion, or unjustified enrichment by performance, is not merely a historical legacy; as Walter Wilburg realized many years ago.[46] What I believe he meant is that such a category makes a lot of sense and offers great explanatory power.

Unjustified enrichment by performance can unite a bundle of cases which have much in common. This is true in particular for the two paradigmatic cases which are often used as examples. In the first one, something of value was transferred gratuitously without animus donandi. In the second case, someone transferred value for a certain legal reason, which subsequently ceases to exist, e.g. because it was voided.

Savigny thought that mistake (Irrtum) was behind all cases of unjustified enrichment by performance.[47] By contrast, Ernst von Caemmerer showed how hard it can be to find one overlapping explanation to unjustified enrichment.[48] Nevertheless, some presumptions can be identified and established. They can help us make sense of the basic working of unjustified enrichment. If someone transfers e.g. goods free of charge without the intent of a donation, that probably triggers restitution, just as it would in the example of transferring money by mistake. This is what the Leistungskondiktion is all about. Restitution based on performance may also be triggered when a legal transaction took place for a reason that failed to exist later.

Enrichment by performance, as a legal category, is useful and needed. It helps us to see that the same rules should apply because the legal problems involved resemble one another in a relevant way. This helps us to understand why late payment charges in enrichment by performance cases should be the same, as I argue in Section VI. It reveals how alike its two paradigmatic cases are and how they share the same relevant structure.

The other large group of cases — Eingriffskondiktion — includes unauthorized uses of someone else’s rights or property. Again, it makes sense to presume that if someone explored the rights or property of someone else without their authorization, a restitutionary claim emerges, as in the case of the mechanic that takes my car for a joyride. There is no contract here. And, to a civil law lawyer, neither is there a tort.

Treating unjustified enrichment by infringement of another’s right as a distinct category helps us to explain and understand many different types of situations involving trade dress and intellectual property violations, as described above. Their structure is similar, and so should some of the legal consequences be. Such a category also highlights how the infringement of rights may attract a legal response which is different to that triggered by enrichment by performance. Good faith, for instance, is almost never present in enrichment by infringement of another’s right — that can make a significant difference.

Finally, there may be another case or model of unjustified enrichment which should be distinguished from enrichment by performance or enrichment by infringement of another’s right. This relates to cases where somebody constructs or makes similar improvements on someone else’s property. Civil law lawyers usually see such problems as part of unjustified enrichment. Ernst von Caemmerer thought that such cases had a proper reasoning behind them.[49] Still, there is a reliable and plausible presumption behind such cases: if I build on what does not belong to me, I may or may not have a right of restitution. After all, if superficies solo cedit is the rule, the owner will get richer because of the improvements I made on his property. And so an issue arises: in what capacity did I improve that person’s property? Was it a lease? Did I act in good faith or in bad faith? These are the questions we should be asking to check if I will be reimbursed for the improvements I made in another person’s property.

German and English experiences could have assisted the Brazilian Civil Code Reform Committee in its decisions about unjustified enrichment. These experiences would have exhibited that the current Civil Code lacks categories that are useful in solving concrete legal problems.

IV. Some context on the Brazilian Civil Code Reform

The final report of the Committee demonstrates that comparative law played virtually no role in the debates on unjustified enrichment. The same is true for the partial report of the corresponding subcommittee.[50] In the end, the committee made only two relevant proposals on unjustified enrichment, as discussed in Sections V and VI.[51]

The Civil Code Reform was initiated by an ordinance from the President of the Federal Senate, Senator Rodrigo Pacheco. In his Act, Senator Pacheco appointed Justices Luís Felipe Salomão and Marco Aurélio Bellize, both from the STJ, to chair the committee.[52]

The committee functioned as follows: the subcommittees gathered and discussed changes in their respective fields of expertise. There were nine subcommittees: General Part, Obligations, Contracts, Property Law, Company Law, Tort Law, Family Law, Inheritance Law and Digital Law.

Each subcommittee had a chairman or partial rapporteur, resulting in a total of nine. All proposals which had been approved in the subcommittees were then submitted to the two general rapporteurs, Flávio Tartuce and Rosa Maria de Andrade Nery. Their nearly final draft was subsequently submitted to a plenary meeting of the full Reform Committee, comprising 42 members. Initially, there were supposed to be 43 members, but Professor Judith Martins-Costa left the committee for undisclosed reasons, presumably due to disagreements with the direction of the reform.[53]

The committee held public hearings in various cities across Brazil. These included many leading Brazilian legal scholars, such as Gustavo Tepedino, Rosa Maria de Andrade Nery, Claudia Lima Marques, Giselda Hironaka and Maria Berenice Dias, but also high court judges and lawyers.[54] Membership in the committee became prestigious. Professional lawyers, with very little or no academic background, played a significant role in the process. Very few of the 42 members had ties to top-ranking law schools.

During the Rio de Janeiro public hearing, the subcommittee on tort law and unjustified enrichment unfortunately only accepted comments from the audience on tort law, citing insufficient time available.[55]

Each subcommittee produced a partial report. In the subcommittee on tort law and unjustified enrichment, the partial report mentions several informal meetings with the general rapporteurs.[56] From the partial and final reports, one can infer that other proposals on unjustified enrichment were made, but not all of them made it to the partial report. Interactions with the general rapporteur, Rosa Maria de Andrade Nery, likely led the subcommittee to abandon some proposals, presumably rejecting them in advance. As this was not disclosed to the public, this remains subject to some speculation.

The partial report include only few relevant changes on unjustified enrichment, with the majority of proposals focusing on tort law.[57] The main proposals that made it to the partial report are the following: (1) introduction of compensatio lucri cum damno, based on unjustified enrichment; (2) use of ‘enriquecimento injustificado’ (literal translation of unjustified enrichment) instead of the more traditional ‘enriquecimento sem causa’; (3) application of unjustified enrichment to legal transactions voided for any reason and (4) inflation adjustment and interest rates for unjustified enrichment.[58]

None of the changes in the partial report made it to the final report. They were all rejected by the general rapporteurs, except for (4). The rules specified that if someone in the committee disagreed with the text presented by the general rapporteurs, they had to publicly diverge by submitting a motion to divide the question (i.e. request for a separate vote). However, this did not occur with any proposal regarding unjustified enrichment. The text of the rapporteurs on unjustified enrichment was unanimously approved without any request for a separate vote by any member of the committee.[59]

The general rapporteurs refined the text of the partial report, proposing the following amendment to the Brazilian Civil Code:

Article 885. The value of the restitution shall be adjusted for inflation from the date of the enrichment and increased by interest for late payment from the date of the summons [or service of the statement of claim] (citação).

The general rapporteurs also referenced a legal concept introduced by the STJ during the above-mentioned case involving an actress.[60] Instead of employing the established terms ‘enriquecimento por intervenção’ or ‘enriquecimento sem causa por intervenção’, which are already familiar in Portuguese-speaking legal circles,[61] the court referred to this enrichment as the ‘profit of intervention’ (lucro da intervenção). The proposed reform adopts this terminology but otherwise brings about very little change:

Article 884.

(…)

§ 2º The obligation to repay the profit from the intervention, understood as the financial advantage obtained from the unauthorised exploitation of someone else’s property or rights, is based on the prohibition of unjust enrichment and is governed by the rules of this chapter.

The change acknowledges that there is a profit from the unauthorised use of someone else’s rights. While this is true, this proposal seems to have it backwards. There is nothing particularly unique about the so-called profit from intervention. What helps us explain and solve legal problems are the characteristics of different types of unjustified enrichment. Some arise from the performance of the rightful owner of the property or right, as when I mistakenly transfer 10,000 euros to a stranger’s bank account. A chance would be missed in this way to recognise a separate category of unjustified enrichment, where the owner of the right does nothing but is deprived of their right by someone else, which provides a more informative perspective for the purpose of classification and appropriate legal response.

At the same time, this proposal fails to specify how the amount of ‘profit from intervention’ is to be measured. This is not necessarily identical with the ‘advantage obtained from the unauthorised exploitation of someone else’s property or rights’. This issue is addressed in Section V.

Failing to categorise unjustified enrichment in any meaningful way leaves the Brazilian Civil Code with no answer to the above-mentioned actress case, in particular as concerns the notion of disgorgement of profits, which is barely discussed in Brazil, and which moreover is not always the most practical and plausible solution.

And whilst the Brazilian Civil Code Reform did mention the so-called ‘profit of intervention’, it still failed to recognize unjustified enrichment by performance.

A better understanding of such concepts would help build a more coherent system of unjustified enrichment in the Brazilian Civil Code. In short, classifying the different types of unjustified enrichment helps to understand their rationale. It offers coherent explanations. And helps find concrete solutions to many legal problems.

 

V. Unjustified enrichment by infringement of another’s right: reasonable fee or disgorgement of profits?

Recall the car joyride example: I left my car at a garage for a few days for repairs and the mechanic took it for a joyride. The restitution value in this case should be equivalent to a daily rental fee: such as what Hertz, Sixt or Europcar would charge to rent a car like mine.

However, determining the amount of restitution is not as straightforward in other cases. For instance, consider if someone uses the image of an actress without her consent for a major advertising campaign, as in the case decided by the Brazilian STJ.[62] How much should that person pay to the actress? Are restitutionary damages sufficient? Would payment of a reasonable fee for the use of her image suffice? Or must the company return every gain obtained from its illegal advertising campaign (disgorgement of profits)?[63] The STJ judges were puzzled that no solution appeared to be provided by law or legal scholarship.[64]

Simply put: should the company pay a reasonable fee, such as the market value for a license agreement with the actress?[65] This seems wrong, because the company would in the worst case only pay the same amount it would have paid if she had consented in the first place. It would provide an incentive for not obtaining consent. However, if a reasonable fee and restitutionary damages are not enough, then how far should disgorgement of profits go? Moreover, how can one determine how much additional profit the company earned because it used the actress’s image?

Imagine I take a horse without the owner’s consent and use it to win a race. Should I only pay the market value of renting the horse or do I have to disgorge all the profit I received because of employing and competing with the horse? This would include the prize I won. At the same time, I won the race not only because of the horse but also due to my riding skills.

Since I took the horse knowing it was not mine, I am not a bona fide possessor. I infringed its owner’s property rights and will be considered a bad faith possessor. Following late Roman law[66], many civil codes simply establish that the bad faith possessor – the unredlicher Besitzer in the Austrian Civil Code (§ 326, ABGB), the bösgläubiger Besitzer in the German BGB or the possuidor de má-fé in the Brazilian Civil Code (art. 1216, CC) – should essentially return all profits which were thus illegally gained. Although intuitive and workable in many instances, that solution may pose difficulties in some cases of unjustified enrichment. This question figures in German law under the umbrella of the owner–possessor relationship (Eigentümer-Besitzer-Verhältnis)[67], as regulated in §§ 987 ff. BGB.

James Edelman argues that there are two distinct forms of gain-based damages: one aims at restitution of gains wrongfully transferred from a claimant to a defendant, whilst the other focuses solely on stripping profits from the defendant’s possession.[68] The former may be called reasonable fee, whilst the latter is referred to as disgorgement of profits.

How far should disgorgement of profits or gain-based damages in general extend? How should it be addressed in a Brazilian Civil Code? In the actress case, I believe that a reasonable fee should serve as the minimum for restitution. The standard fee for a similar advertising campaign serves as a baseline for liability which should be recoverable even if the campaign did not turn out to be profitable. However, unlike in the case in which the mechanic takes my car for a joyride, the actress should be entitled to the disgorgement of every profit the drugstore chain illegally obtained using her image. Unfortunately, the Civil Code Reform Committee failed to provide any solid guidance on this matter.

Brazil’s Industrial Property Law, in Article 210, establishes the amount of restitution in case of trademark violation as follows:

Art. 210. Loss of profits will be determined by the criteria most favourable to the injured party, amongst the following:

I. the benefits that the injured party would have received if the violation had not occurred; or

II. the benefits obtained by the perpetrator of the violation of the right; or

III. the remuneration that the perpetrator of the violation would have paid to the holder of the violated right for granting a license that would legally allow him to exploit the asset.

It is essentially the sole Brazilian law outlining criteria for determining the amount of restitution owed. A comparable provision can be found in the Brazilian Copyright Law. Article 103 stipulates that ‘anyone who publishes a literary, artistic or scientific work without authorisation from the owner will forfeit to the owner any seized copies and will compensate them for those sold’. Additionally, ‘[i]f the quantity of copies in the infringing edition is unknown, then the offender will compensate for the equivalent of 3,000 copies, in addition to those seized’. This represents a form of pre-fixed indemnity.

Both laws – the one regarding trademarks and the one concerning copyright – align with international treaties ratified by Brazil. Hence, they stand as the sole legal regulations in Brazil governing the amount of restitution. Both laws stem from the widely recognised Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), amongst the member nations of the World Trade Organization.

At times, the trademark violation law may offer less favourable terms to the aggrieved party compared with its copyright counterpart. Lawyers have advocated for one rule to be applied over the other. However, the STJ ruled that each legal framework operates independently. They should not be conflated or intertwined. When Article 210 and trademark law are invoked, Article 103 and copyright law are superseded and vice versa.[69]

When the Civil Code Reform Committee defines the so-called ‘profit of intervention’ (lucro de intervenção) as the ‘advantage obtained from the unauthorised exploitation of someone else’s property or rights’, it leaves many questions unanswered.

First, this neglects to address cases of unjustified enrichment by performance. At this juncture, one might argue: but that is evident. The ‘profit of intervention’ solely pertains to enrichment by intervention. And yet the issue arises because there is no equivalent term for ‘enrichment by performance’ in Brazil. The legal lexicon lacks this category. The code failed to rectify this foreseeable misunderstanding, despite its necessity. Referring to ‘profit of intervention’ as though it encompasses all instances of unjustified enrichment is a glaring oversight.

However, even in enrichment by intervention cases, the disgorgement of profits is not always the most practical and plausible solution. As the TRIPS solutions adopted in Brazil on trademark and copyright show, it can be considerably difficult to prove the amount of profit obtained through the infringement of someone else’s rights. Consider the mechanic who rides my car without my authorisation. I find it plausible for him to pay a standard or reasonable fee. Again, the mechanic or the owner of the garage should pay what Hertz, Sixt or Europcar would charge to rent a car like mine.

Does that fall into the ‘advantage obtained from the unauthorised exploitation of someone else’s property or rights’? I am not certain. This proposed definition does not distinguish between a reasonable fee and disgorgement of profits. It does not give room for different solutions in the case of the mechanic and the one involving the actress. At times, it is fair and more workable to pay a reasonable fee. When someone takes my car without my authorisation, that is normally a fair and sufficient restitution. But this is not so when a drugstore chain wrongly employs the image of a well-known actress.

In the car joyride case, there might be no other gain to be disgorged. Besides the actual use of the car, whoever drove it gained nothing else. If there is any additional gain, trying to measure it might be unworkable. This is why fixing the reasonable fee as a restitution minimum is so important in many cases. It simplifies unjustified enrichment and makes it more efficient. It is also a fair solution in most instances: maybe one should receive more than the reasonable fee, but not less. It should, therefore, work as the minimum for restitution. Few countries have adopted such a rule outside of the intellectual property domain.

There is no universal (or one-size-fits-all) solution for all cases. This is the flaw in the approach taken by the Brazilian Civil Code Reform Committee. It renders their concept of ‘profit of intervention’ minimally useful and potentially unfeasible.

In a certain way, even if the proposal is enacted into law, Beviláqua’s approach will live on. The Brazilian Civil Code Reform Committee is keeping it alive. The committee made almost no proposals on unjustified enrichment. I would argue that the committee also proposed another faulty rule, the one already adopted in the partial report,concerning inflation adjustments and interest rates.

VI. Dies a quo (commencement date) of interest rates and inflation adjustment

In Brazil, interest rates and inflation adjustment usually apply after the so-called citação (art. 405, Brazilian Civil Code; art. 240, Brazilian Code of Civil Procedure). The locus classicus in Brazilian private law is Agostinho Alvim.[70]

Citação is the first warning or notification of the pending of a suit (Rechtshängigkeit; Litispendenz). It is the equivalent to the service of the statement of claim or the German Zustellung der Klageschrift (§ 271, ZPO). Thus, it shifts the balance of risk. The parties must consider the possibility of losing the case and will respond accordingly. This is considered a form of notice (interpellatio; Mahnung) and induces default, Verzug or mora[71] (§ 291, § 292, § 987, BGB) or, as some prefer[72], ‘mora resembling legal consequences’ (verzugsähnliche Folgen). This concept is not alien to English law.[73]

However, in tort law, interest rates and inflation adjustment are due from the day the damage was caused (art. 398, Brazilian Civil Code). In Brazil, if someone hits my car, interest rates and inflation adjustment will start to apply on the very day the car was damaged. This is a type of mora ex re, not mora ex persona. The person who hit my car is considered in default or mora from the day they caused the damage.

The idea that the pending of a suit aggravates liability goes back to Roman law. The litis contestatio was a decisive moment in the Roman formulary procedure and in later periods.[74] The pending of a suit remains highly relevant in many legal systems, as evidenced by the German BGB (§ 291, § 292, § 987, BGB).

In Brazil, interest rates and inflation adjustment heavily influence the final amount to be paid by a defendant.[75] Thus, it is of high practical relevance to determine when late payment charges begin to apply in cases of unjustified enrichment.[76] Should the general rule in private law apply here? Or does this situation fall under the specific rule of tort law? Should a different and alternative legal framework – a tertium genus – be adopted instead?

Does the dies a quo change if the enrichment was caused by an act of the claimant himself, rather than by an infringement of the claimant’s right by the defendant?

Brazilian late payment charges are unique. Inflation in Brazil is typically higher than in European countries, such as Germany or the UK. Even so, Brazilian scholarship is adrift on this matter and so is the Brazilian Civil Code Reform Committee.

The committee’s only relevant proposal on unjustified enrichment involved the dies a quo of late payment charges. One would assume that the committee would deviate from the general rule. Why else would it be necessary to create a new rule? However, the proposal simply states that late payment charges in unjustified enrichment start to apply with the citação or service of the statement of claim. This is both redundant and implausible.

Considering that Brazilian lawyers typically do not classify unjust enrichment cases, they fail to see that there should be a difference between unjustified enrichment by performance (Leistungskondiktion) and unjustified enrichment by infringement of another’s right (Eingriffskondiktion).

If I mistakenly transfer 10,000 euros to a stranger’s bank account, then a restitution claim emerges. I have the right to claim my money back, as there is no legal cause for the transfer. It was a mistake. But when should the stranger be considered in default or mora? At what point should it be considered late to return the money?

In unjustified enrichment by performance (Leistungskondiktion), I believe that good faith and bad faith may influence when late payment charges should apply. Suppose the stranger to whom I transferred my money is a prominent entrepreneur who frequently receives payments of similar or larger amounts in that account. In such a scenario, it cannot be presumed that he knew about the mistaken transfer. The stranger should be considered in good faith until I notify him to return the money. In this case, mora is not ex re but ex persona. Considering that the stranger reasonably did not realise that the 10,000 euros were transferred mistakenly, I must establish mora by notifying him through an interpellatio or Mahnung.

If I never notify the stranger, then default begins with the citação or service of the statement of claim. By knowing he is being sued by me, the stranger can no longer ignore that the money is not his and must account for the possibility of losing the case. The balance of risk shifts. However, this only applies in cases of unjustified enrichment by performance (Leistungskondiktion).

The same rules would not work for cases of unjustified enrichment by infringement of another’s right (Eingriffskondiktion), because it operates differently. When someone enriches themselves at the expense of my property or rights, mora is ex re. It starts automatically, ipso iure et ipso facto. If someone damages my car, late payment charges start from that very moment, as that person should have never caused the damage in the first place.

That is why, in Brazilian tort law (also known as Aquilian liability because of the lex Aquilia), interest rates and inflation adjustment are due from the very day the damage was caused (art. 398, Brazilian Civil Code). The person that wrongly caused the damage is considered in default or mora as of the day she caused the damage.

The same legal framework should be applied in Brazil to unjustified enrichment by infringement of another’s right (Eingriffskondiktion). As Fritz Schulz acknowledged, tort law and unjustified enrichment by intervention resemble one another in some points.[77] The mechanic who took my car for a joyride, the drugstore chain that took the actress’ image and the horseman who won a horse race with someone’s horse all share at least one thing in common: they cannot reasonably claim to have acted in good faith. All of them knew or should have known that they were legally usurping someone else’s property of rights.

That is why the Civil Code Reform is so disappointing. Using the service of the statement of claim as the starting point for late payment charges did not require any new rule. It was already the backup or residual solution in Brazilian law. At the same time, the committee ignored well-known distinctions within the same legal tradition. This highlights the importance of understanding unjustified enrichment and its various categories, as they help us navigate through complex legal issues.

VII. Conclusion

The three shortcomings of the Brazilian Civil Code Reform on unjustified enrichment are interconnected. The lack of a taxonomy blurred the difference between enrichment by intervention and enrichment by performance. That difference is relevant when fixing the beginning of late payment charges and default (mora; Verzug). In addition, this prevented the committee from developing appropriate rules on the measure of restitution. The committee failed to address the complexity of that issue, leaving the Civil Code proposal exactly where the current Civil Code stands: far from providing a solution to the necessity of distinguishing between a reasonable fee and disgorgement of profits.

The proposal of the final report will now be debated in the two chambers of the Brazilian National Congress (Federal Senate and House of Representatives). The last Civil Code Reform took nearly 33 years to complete, and barely 20 years after its enaction, Parliament and lawyers are already seeking to overhaul it once more.

In the field of unjustified enrichment, the Brazilian Civil Code should be comprehensively reformed, but I believe that the change started in the wrong direction. We can only hope that Brazilian legislators will carefully consider this matter. Just as they should not miss the opportunity to rectify Beviláqua’s mistakes, they must also avoid rushing into making new ones.

So far, Brazil has remained stagnant, perpetuating Beviláqua’s mistake. We need to delve deeper into the study of unjust enrichment and create a more comprehensive and plausible legal framework on the subject. Unfortunately, the Civil Code Reform Commission failed to take some crucial steps in this direction.

* Associate Professor of Private Law, University of Brasília, Brazil; District Court Judge at the State of São Paulo.↑

  1. Claudio Michelon, Direito Restitutório: Enriquecimento sem causa, pagamento indevido, gestão de negócios (Revista dos Tribunais 2007) 19–26. ↑
  2. Clóvis Beviláqua et al., Projecto do Codigo civil brazileiro: trabalhos da Commissão Especial da Camara dos Deputados: mandados imprimir pelo ministro do Interior, Dr. Sabino Barroso Junior (vols. 1–8, Imprensa Nacional 1902); Gustavo Haical and Francisco Medina, Teoria dos Fatos Jurídicos no Direito Brasileiro, Uma Análise Histórico-Dogmática – Da Obra de Teixeira de Freitas ao Código Civil de 2002 (Revista dos Tribunais 2023) 77–79, 81–108. ↑
  3. Jan Peter Schmidt, Zivilrechtskodifikation in Brasilien (Mohr Siebeck 2009) 43–56, 342–353. ↑
  4. Jan Peter Schmidt, Zivilrechtskodifikation in Brasilien (Mohr Siebeck 2009) 43–48, 342–353. See also Clóvis Beviláqua, ‘Observações para esclarecimento do Codigo Civil brazileiro’ in Clóvis Beviláqua (ed), Projecto de Codigo Civil brazileiro (vol. 1, Imprensa Nacional 1902) liv-lv, 20; Clóvis Beviláqua, ‘Em Defeza do Projecto de Codigo Civil brazileiro’ in Clóvis Beviláqua (ed), Projecto de Codigo Civil brazileiro (vol. 1, Imprensa Nacional 1902) 84–85; Gustavo Haical and Francisco Medina, Teoria dos Fatos Jurídicos no Direito Brasileiro, Uma Análise Histórico-Dogmática – Da Obra de Teixeira de Freitas ao Código Civil de 2002 (Revista dos Tribunais 2023) 77–79. ↑
  5. Jan Peter Schmidt, Zivilrechtskodifikation in Brasilien (Mohr Siebeck 2009) 24–41, 180–181, 332–342. ↑
  6. Claudio Michelon, Direito Restitutório: Enriquecimento sem causa, pagamento indevido, gestão de negócios (Revista dos Tribunais 2007) 19–26. For a juxtaposition of the BGB’s system with the French Civil Code’s isolated Art. 1376 (which, in its original 1804 formulation, in force until 2016, had almost the exact wording of the – also companionless – art. 964 of the 1916 Brazilian Civil Code), see Frank L. Schäfer, ‘§§ 812–822. Ungerechtfertigte Bereicherung’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol. III/2 (Mohr Siebeck, 2013) 2603. ↑
  7. Robert Feenstra, ‘Grotius Doctrine of Unjust Enrichment as a Source of Obligation: Its Origin and its Influence on Roman-Dutch Law’ in Eltjo J H Schrage (ed), Unjust Enrichment (Berlin, Duncker & Humblot, 1995) 197; James Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (OUP 2006) 424–425; Frank L. Schäfer, ‘§§ 812–822. Ungerechtfertigte Bereicherung’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol. III/2 (Mohr Siebeck, 2013) 2585, 2596–2600; James Gordley, Hao Jiang and A Taylor von Mehren, An Introduction to the Comparative Study of Private Law (2nd edn CUP 2021) 526. ↑
  8. Cass. req. 15 June 1892, arrêt Boudier, GAJC, t. 2, 12e éd., no 239. See John Bell, Sophie Boyron and Simon Whittaker, Principles of French Law (2nd edn, OUP 2008) 413–420. ↑
  9. See, e.g. Simon Whittaker and John Cartwright, ‘Introduction’ in Simon Whittaker and John Cartwright (eds), The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms (Hart 2017) 2–3, 5; Pietro Sirena, ‘The New Design of the French Law of Contract and Obligations: An Italian View’ in Simon Whittaker and John Cartwright (eds), The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms (Hart 2017) 346–348. ↑
  10. João Costa-Neto and Carlos E E de Oliveira, Direito Civil (3rd edn, Método 2024) 720–722. ↑
  11. See, e.g. Fritz Schulz, Classical Roman Law (Clarendon Press 1951) 610–619; Adolf Berger, ‘Encyclopedic Dictionary of Roman Law’ (1953) 43 Transactions of the American Philosophical Society 333, 405; Vincenzo Arangio-Ruiz, Istituzioni di diritto romano (Jovene 1957) 360 ff.; William W Buckland, A Text-Book of Roman Law from Augustus to Justinian (3rd edn, CUP 1963) 541–549; Max Kaser, Das römische Privatrecht, Das altrömische, das vorklassische und klassische Recht (2nd edn, C.H. Beck 1971) 592–600; Heinrich Honsell, Theo Mayer-Maly and Walter Selb, Römisches Recht (4th edn, Springer 1987) 350–356; Mario Talamanca, Istituzioni di diritto romano (Giuffrè 1990) 611–614; Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Juta & Co 1990) 834 ff.; Antonio Guarino, Diritto privato romano (12th edn, Jovene 2001) 967–971; Frank L. Schäfer, ‘§§ 812-822. Ungerechtfertigte Bereicherung’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol. III/2 (Mohr Siebeck 2013) 2593–95; Iole Fargnoli, ‘Condictio als Rückforderungsklage’ in Ulrike Babusiaux et al. (eds), Handbuch des Römischen Privatrechts (vol. 2, Mohr Siebeck 2023) 2008–16. On the Roman classification of restitution as quasi-contracts, as opposed to quasi-delicts, including its persistence in French law, see, e.g. Eric Descheemaeker, The Division of Wrongs: A Historical Comparative Study (OUP 2009) 66, 120-1, 140-1. ↑
  12. Jan Kleinheisterkamp, ‘Development of Comparative Law in Latin America’ in Matthias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2nd edn, OUP 2019) 286–287. ↑
  13. On so-called hedonic damages, see, e.g. Nancy Blodgett, ‘Hedonic Damages: A Price on the Pleasures of Life’ (1985) 71 American Bar Association Journal 25; Sherrod v. Berry, 827 F. 2d 195 (7th Cir. 1987); Trent Webb, ‘Hedonic Damages: An Alternative Approach’ (1992) 61 UMKC Law Review 121. ↑
  14. STJ, Terceira Turma, AgRg no AREsp 38.057/SC, Rel. Min. Sidnei Beneti, j. 15/5/2012, DJe 28/5/2012; STJ, Quarta Turma, AgInt no AREsp 868.437/SP, Rel. Min. Luis Felipe Salomão, j. 16/3/2017, DJe 28/3/2017; STJ, Terceira Turma, AgInt no REsp 1.801.537/SP, Rel. Min. Moura Ribeiro, j. 30/9/2019, DJe 3/10/2019; STJ, Quarta Turma, AgInt no AREsp 1.517.808/MS, Rel. Min. Maria Isabel Gallotti, j. 30/3/2020, DJe 2/4/2020; STJ, Quarta Turma, AgInt no REsp 1.406.227/PR, Rel. Min. Marco Buzzi, j. 4/5/2020, DJe 7/5/2020. ↑
  15. The exceptions are basically the following: Cláudio Michelon, Direito Restitutório: Enriquecimento sem causa, pagamento indevido, gestão de negócios (Revista dos Tribunais 2007); Giovanni Ettore Nanni, Enriquecimento sem causa (2nd edn, Saraiva 2010); Sérgio Savi, Responsabilidade civil e enriquecimento sem causa: o lucro da intervenção (Atlas 2012); Thiago Lins, O lucro da intervenção e o direito à imagem (Lumen Juris 2016); Rodrigo da Guia Silva, Enriquecimento sem causa: as obrigações restitutórias no direito civil (1st published 2018, 2nd edn RT 2022); Nelson Rosenvald, A responsabilidade civil pelo ilícito lucrativo: o disgorgement e a indenização restitutória (JusPodivm 2019); Renato Duarte Franco de Moraes, Enriquecimento sem causa: e o enriquecimento por intervenção (Almedina 2021); João Costa-Neto and Elias C. Nóbrega Neto, Enriquecimento sem causa por intervenção e o disgorgement of profits no Direito brasileiro (Lumen Juris 2024); João Costa-Neto and Carlos E. Elias de Oliveira, Direito Civil (first published 2022, 3rd edn, Método 2024) 741–766. ↑
  16. João Costa-Neto and Carlos E. Elias de Oliveira, Direito Civil (first published 2022, 3rd edn, Método 2024) 722. ↑
  17. Claudio Michelon, ‘Native sources and comparative resources: unjustified enrichment in Brazil after the 2002 Civil Code’ (2016) 9 Revista de Direito Civil Contemporâneo, 251. ↑
  18. Nelson Rosenvald, A responsabilidade civil pelo ilícito lucrativo: o disgorgement e a indenização restitutória (1st edn, Juspodivm 2019) 25–26, 167, 531. ↑
  19. Sonja Meier, ‘Unjustified Enrichment’ in Jürgen Basedow, Klaus Jürgen Hopt and Reinhard Zimmermann (eds), The Max Planck Encyclopedia of European Private Law (vol. 2, OUP 2012) 1745. On the origins of the German taxonomy, see Walter Wilburg, Die Lehre von der ungerechtfertigten Bereicherung nach österreichischem und deutschem Recht (Leuschner & Lubensky 1934); Ernst von Caemmerer, ‘Bereicherung und unerlaubte Handlung’ in Hans Dölle, Max Rheinstein and Konrad Zweigert, Festschrift für Ernst Rabel (Mohr Siebeck 1954) 333, 353; Hans Merz, ‘Reviewed Work: Gesammelte Schriften. Bd. I: Rechtsvergleichung und Schuldrecht. Bd. II: Gesellschaftsrecht, Währung und Kredit by Ernst von Caemmerer, Hans G. Leser’ (1976) 40 RabelsZ 138–141; Thomas Krebs, Restitution at the Crossroads: a Comparative Study (Cavendish 2001) 207–17. ↑
  20. Gerhard Dannemann, The German Law of Unjustified Enrichment and Restitution: A Comparative Introduction (OUP 2009) 21–25. ↑
  21. Gerhard Dannemann, The German Law of Unjustified Enrichment and Restitution: A Comparative Introduction (OUP 2009) 12–18. ↑
  22. João Costa-Neto and Carlos E E de Oliveira, Direito Civil (first published 2022, 3rd edn, Método 2024) 395–396. ↑
  23. Peter Birks, Unjust Enrichment (2nd edn OUP 2005) 148, 158; Thomas Krebs, ‘The Fallacy of “Restitution for Wrongs”’ in Andrew Burrows and Alan Rodger, Mapping the Law: Essays in Memory of Peter Birks (OUP 2006) 379–380. ↑
  24. See, e.g. Fritz Schulz, ‘System der Rechte auf den Eingriffserwerb’ (1909) 105 Archiv für die civilistische Praxis 1; Walter Wilburg, Die Lehre von der ungerechtfertigten Bereicherung nach österreichischem und deutschem Recht (Leuschner & Lubensky 1934); Ernst von Caemmerer, ‘Bereicherung und unerlaubte Handlung’ in Hans Dölle, Max Rheinstein and Konrad Zweigert, Festschrift für Ernst Rabel (Mohr Siebeck 1954) 333-401; Karl Larenz and Claus-Wilhelm Canaris, Lehrbuch des Schuldrechts, Besonderer Teil (vol. II/2, 13th edn, C.H. Beck 1994) 127 ff.; Gerhard Dannemann, The German Law of Unjustified Enrichment and Restitution: A Comparative Introduction (OUP 2009) 6–18; Gerhard Dannemann, ‘§§ 812-822’ , in Gerhard Dannemann and Reiner Schulze (eds), German Civil Code/Bürgerliches Gesetzbuch (BGB) (vol. 1, Nomos 2022) 1576 ff. ↑
  25. Daniel Visser, ‘Unjustified Enrichment in Comparative Perspective’ in Matthias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2nd edn, OUP 2019) 985. ↑
  26. Peter Birks, Unjust Enrichment (2nd edn, OUP 2005) 116. ↑
  27. Andrew Burrows, ‘Absence of Basis: The New Birksian Scheme’, in Andrew Burrows and Alan Rodger, Mapping the Law: Essays in Memory of Peter Birks (OUP 2006) 33, 44; Gerhard Dannemann, ‘Unjust Enrichment as Absence of Basis: Can English Law Cope?’ in Andrew Burrows and Alan Rodger, Mapping the Law: Essays in Memory of Peter Birks (OUP 2006) 363, 375–377; Graham Virgo, The Principles of the Law of Restitution (2nd edn, OUP 2006) 128; James Edelman, ‘The Meaning of ‘Unjust’ in the English Law of Unjust Enrichment’ (2006) 14 European Review of Private Law 326. ↑
  28. STJ, Terceira Turma, REsp 1.698.701/RJ, Rel. Min. Ricardo Villas Bôas Cueva, j. 02/10/2018, DJe 08/10/2018. ↑
  29. BGH 8.5.1956, BGHZ 20, 345. ↑
  30. Rodrigo da Guia Silva, Enriquecimento sem causa: as obrigações restitutórias no direito civil (2nd edn, RT 2022) 25. ↑
  31. STJ, REsp 1.730.067/SP, 3ª Turma, Rel. Min. Nancy Andrighi, j. 15/12/2020. ↑
  32. STJ, AREsp 1.303.548/RN, 4ª Turma, Rel. Min. Raul Araújo, j. 5/3/2024. ↑
  33. João Costa-Neto and Elias C. Nóbrega Neto, Enriquecimento sem causa por intervenção e o disgorgement of profits no Direito brasileiro (Lumen Juris 2024) 13 ff. ↑
  34. Fritz Schulz, ‘System der Rechte auf den Eingriffserwerb’ (1909) 105 Archiv für die civilistische Praxis 1. ↑
  35. Fritz Schulz, ‘System der Rechte auf den Eingriffserwerb’ (1909) 105 Archiv für die civilistische Praxis 1. ↑
  36. João Costa-Neto and Carlos E. Elias de Oliveira, Direito Civil (first published 2022, 3rd edn, Método 2024) 741–766. ↑
  37. Nelson Rosenvald, A responsabilidade civil pelo ilícito lucrativo: o disgorgement e a indenização restitutória (1st edn, Juspodivm 2019) 25–26, 167, 531. ↑
  38. See, e.g., Antonio Albanese, Ingiustizia del profitto e arricchimento senza causa (CEDAM 2005) 354 ff.; Paolo Gallo, Arricchimento senza causa e quasi contratti (UTET 2008) 31-48; Rodolfo Sacco, L’arricchimento ottenuto mediante fatto ingiusto (Unione 1959); António Menezes Cordeiro, Tratado de Direito Civil Português (vol. II/3, Almedina 2010) 179–202; Júlio Manuel Vieira Gomes, O conceito de enriquecimento, o enriquecimento forçado e os vários paradigmas do enriquecimento sem causa (UCP 1998). ↑
  39. Ernst Rabel, ‘Negotium alienum und animus’, Emilio Albertario, Pietro Ciapessoni and Pietro De Francisci (eds), Studi in onore di Pietro Bonfante (vol. IV, Treves 1930) 279 ff. ↑
  40. Ernst von Caemmerer, ‘Bereicherung und unerlaubte Handlung’ in Hans Dölle, Max Rheinstein and Konrad Zweigert (eds), Festschrift für Ernst Rabel (Mohr Siebeck 1954) 333–334. ↑
  41. Nils Jansen, ‘Gesetzliche Schuldverhältnisse. Eine historische Strukturanalyse’ (2016) 216 Archiv für die civilistische Praxis 112–233. ↑
  42. Claus-Wilhelm Canaris, ‘Diskussionsbericht zum Referat von Nils Jansen’ (2016) 216 Archiv für die civilistische Praxis 236. ↑
  43. João Costa-Neto and Carlos E. Elias de Oliveira, Direito Civil (first published 2022, 3rd edn, Método 2024) 742. ↑
  44. Gerhard Dannemann, ‘Review Article – The Laws of Restitution’ [2024] LMCLQ 353–374. ↑
  45. Robert Stevens, The Laws of Restitution (OUP 2023) 3. ↑
  46. Walter Wilburg, Die Lehre von der ungerechtfertigten Bereicherung nach österreichischem und deutschem Recht (Leuschner & Lubensky 1934) 12 ff., 21. ↑
  47. Friedrich Karl von Savigny, System des heutigen römischen Rechts (vol. V, Veit & Comp 1841) 523–525. ↑
  48. Ernst von Caemmerer, ‘Bereicherung und unerlaubte Handlung’ in Hans Dölle, Max Rheinstein and Konrad Zweigert, Festschrift für Ernst Rabel (Mohr Siebeck 1954) 337–340. ↑
  49. Ernst von Caemmerer, ‘Bereicherung und unerlaubte Handlung’ in Hans Dölle, Max Rheinstein and Konrad Zweigert, Festschrift für Ernst Rabel (Mohr Siebeck 1954) 340. ↑
  50. Nelson Rosenvald, Relatório Parcial (Parecer nº 1, de 15/12/2023, da Subcomissão de Responsabilidade Civil e Enriquecimento Sem Causa da Comissão de Juristas responsável pela revisão e atualização do Código Civil [CJCODCIVIL]), ed. by Senado Federal (Brasília, 2024) 84, 132–135.] ↑
  51. Luís Felipe Salomão, Relatório Final dos trabalhos da Comissão de Juristas responsável pela revisão e atualização do Código Civil, ed. by Senado Federal (Brasília, 2024) 81. ↑
  52. Ato do Presidente do Senado Federal nº 11, de 2023 (ATS nº 11/2023). ↑
  53. Luís Felipe Salomão, Relatório Final dos trabalhos da Comissão de Juristas responsável pela revisão e atualização do Código Civil, ed. by Senado Federal (Brasília, 2024) 81; the debates on the Final Report can be found in Youtube, starting with the following video: <https://www.youtube.com/watch?v=XDh2eTm8pTQ> accessed 4 September 2024. ↑
  54. Luís Felipe Salomão, Relatório Final dos trabalhos da Comissão de Juristas responsável pela revisão e atualização do Código Civil, ed. by Senado Federal (Brasília, 2024) 3. ↑
  55. Comissão de Juristas responsável pela revisão e atualização do Código Civil (CJCODCIVIL), Mesa redonda para apresentação de sugestões à comissão especial de reforma do Direito Civil (Report, 2023) available at <https://www.youtube.com/watch?v=WQ1x2xIshss> accessed 19 May 2024. ↑
  56. Nelson Rosenvald, Relatório Parcial (Parecer nº 1, de 15/12/2023, da Subcomissão de Responsabilidade Civil e Enriquecimento Sem Causa da Comissão de Juristas responsável pela revisão e atualização do Código Civil [CJCODCIVIL]), ed. by Senado Federal (Brasília, 2024) 1–2. ↑
  57. Nelson Rosenvald, Relatório Parcial (Parecer nº 1, de 15/12/2023, da Subcomissão de Responsabilidade Civil e Enriquecimento Sem Causa da Comissão de Juristas responsável pela revisão e atualização do Código Civil [CJCODCIVIL]), ed. by Senado Federal (Brasília, 2024).] ↑
  58. Nelson Rosenvald, Relatório Parcial (Parecer nº 1, de 15/12/2023, da Subcomissão de Responsabilidade Civil e Enriquecimento Sem Causa da Comissão de Juristas responsável pela revisão e atualização do Código Civil [CJCODCIVIL]), ed. by Senado Federal (Brasília, 2024) 84, 132–135. ↑
  59. Regulamento Interno da Comissão de Juristas responsável pela revisão e atualização do Código Civil (arts. 10 and 11); Luís Felipe Salomão, Relatório Final dos trabalhos da Comissão de Juristas responsável pela revisão e atualização do Código Civil, ed. by Senado Federal (Brasília, 2024) 81. ↑
  60. STJ, Terceira Turma, REsp 1.698.701/RJ, Rel. Min. Ricardo Villas Bôas Cueva, j. 02/10/2018, DJe 08/10/2018. ↑
  61. See, e.g., António Menezes Cordeiro, Tratado de Direito Civil Português (vol. II/3, Almedina 2010) 179–202. ↑
  62. STJ, Terceira Turma, REsp 1.698.701/RJ, Rel. Min. Ricardo Villas Bôas Cueva, j. 02/10/2018, DJe 08/10/2018. ↑
  63. On the ‘give back’ metaphor and its limits, see Peter Birks, Unjust enrichment (2nd edn, OUP 2005) 281–283; Thomas Krebs, ‘The Fallacy of ‘Restitution for Wrongs’’ in Andrew Burrows and Alan Rodger (eds), Mapping the Law: Essays in Memory of Peter Birks (OUP 2006) 380–381. ↑
  64. STJ, Terceira Turma, REsp 1.698.701/RJ, Rel. Min. Ricardo Villas Bôas Cueva, j. 02/10/2018, DJe 08/10/2018. ↑
  65. Stephen Watterson, ‘Gain-based remedies for civil wrongs in England and Wales’ in Ewoud Hondius and André Janssen (eds), Disgorgement of profits: gain-based remedies throughout the world, 1st edn (1st edn, Springer 2015) 39. ↑
  66. See, e.g. Ulp. 15 ad. ed., D. 5, 3, 20, 21; Paul. 20 ad ed., D. 5, 3, 40 pr.; Ulp. 22 ad sab., D. 30, 47, 6; Max Kaser, Römisches Privatrecht, Die Nachklassischen Entwicklungen (vol. 2, 2nd edn, C.H. Beck 1975) 295; Álvaro D’Ors, Derecho Privado Romano (10th edn, EUNSA 2004) 213–214, 238, 336–337. ↑
  67. Heinrich Stutz, Die Rechtsbeziehungen des Eigentümers zum nichtberechtigten Besitzer (Michael Laßleben 1933); Ursula Köbl, Das Eigentümer-Besitzer-Verhältnis im Anspruchssystem des BGB: zugleich Beitrag zur Konkurrenzlehre (Duncker & Humblot 1971); Dirk A. Verse, Verwendungen im Eigentümer-Besitzer-Verhältnis, Eine kritische Betrachtung aus historisch-rechtsvergleichender Sicht (Mohr Siebeck 1999); Herbert Roth, ‘Das Eigentümer-Besitzer-Verhältnis’ (2003) 43 JuS 937; Jan Dirk Harke, Römisches Recht (C.H. Beck 2008) 224-225; Oliver Becker and Anna-Katharina Haarer, ‘Konkurrenzprobleme des Eigentümer-Besitzer-Verhältnisses’ (2020) 42 JURA 1296. ↑
  68. James Edelman, Gain-based damages: contract, tort, equity and intellectual property (Hart 2002) 35, 72. ↑
  69. STJ, AREsp n. 1.083.964, 4ª Turma, Ministro Marco Buzzi, j. 24/05/2021. ↑
  70. Agostinho Alvim, Da Inexecução das Obrigações e suas Consequências (3rd edn, Saraiva 1965) 121–127, 129–134. ↑
  71. See, e.g., Jan Dirk Harke, Allgemeines Schuldrecht (Springer 2010) 190–191. ↑
  72. Ludwig Enneccerus and Heinrich Lehmann, Lehrbuch des Bürgerlichen Rechts, Recht der Schuldverhältnisse (vol. 2, J.C.B. Mohr, 1954) 231–2. ↑
  73. Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 (CA). For a different solution in English law, one that would have been endorsed neither in Brazil nor in Germany, see Morris v Tarrant [1971] 2 QB 143. ↑
  74. Max Kaser, Das römische Privatrecht, Das altrömische, das vorklassische und klassische Recht (2nd edn, C.H. Beck 1971) 436, 649-50; Max Kaser and Karl Hackl, Das Römische Zivilprozessrecht (C.H. Beck 1996) 295-301; Á D’Ors, Derecho Privado Romano (10th edn, EUNSA 2004) 336–337. ↑
  75. João Costa-Neto and Carlos E E de Oliveira, Direito Civil (first published 2022, 3rd edn, Método 2024) 490–96. ↑
  76. João Costa-Neto and Carlos E E de Oliveira, Direito Civil (first published 2022, 3rd edn, Método 2024) 733, 736. ↑
  77. Fritz Schulz, ‘System der Rechte auf den Eingriffserwerb’ (1909) 105 Archiv für die civilistische Praxis 1. ↑