Unjustified Enrichment and Unsolicited Goods: Difference between pages

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by ''[[Sonja Meier]]''
by ''[[Thomas Rüfner]]''


== 1. Basic principles ==
== 1. Delivery of unsolicited goods and its consequences in European private law ==


‘It is a fundamental principle of natural justice that no one ought unjustly to enrich himself at the expense of another.’ This statement, attributed to the Roman jurist Pomponius (D. 12,6,14 and D. 50,17,206), is universally acknowledged throughout Europe. Indeed, every jurisdiction has legal remedies for correcting receipts of benefits not approved of by the law. Nonetheless, so far there has been no consensus as to the meaning of Pomponius’ statement. Is it a mere maxim of equity, or is it a substantial (and therefore directly applicable) rule of law? There has always been the fear of boundless sway of natural justice. But, on the other hand, there have always been endeavours to systematize the existing claims for the surrender of benefits received, and to coordinate their requirements and characteristics. Nowadays, Pomponius’ expression is recognized as either a legal rule or at least as a legal principle that underlies the existing claims for restitution of benefits and can also be used to justify newly created claims for restitution.
=== a) Delivery of unsolicited goods before and after the formation of a contract ===


== 2. ''Ius commune'' foundations ==
If a person receives goods that he has not ordered, two basic questions arise: the first is whether and under what circumstances the recipient of the goods is obliged to pay for them even though he did not order them. Secondly, if there is no duty to pay, it must be asked whether there is at least a duty to handle the goods with care and to give them back to the supplier. The answers are largely dependent on the reasons that led to the delivery. The supplier may have delivered the goods in order to fulfil a contractual duty (eg to deliver some other goods). In that case, the delivery of goods different from those due under the contract is either the result of a mistake or a deliberate attempt to discharge the contractual obligation without (fully) complying with the contract’s terms. In both cases, the delivery of unsolicited goods is an attempt (though a flawed one) to perform an existing contractual agreement. In other cases the delivery of unsolicited goods constitutes an attempt to procure the conclusion of a contract: the supplier sends goods to a recipient in order to induce him to buy the goods and pay for them.


The European ''ius commune'' did not have a general unjustified enrichment action. There were, however, specific actions directed at the surrender of a benefit the defendant had obtained in some way, at the expense of the claimant, which were associated with Pomponius’ unjust enrichment principle by the ''ius commune'' scholars.
Modern European legislation generally aims at preventing suppliers from using the delivery of unsolicited goods as a means to procure the conclusion of a contract. The various statutory provisions tend to make the supplier’s position as uncomfortable as possible. Consequently, this entry will focus on the fight against the delivery of unsolicited goods as a marketing tool (or, in the words of the European Distance Contracts Directive (Dir 97/7), a ‘promotional technique’). We will only deal with the delivery of unsolicited goods in the course of the performance of an existing contract as far as this phenomenon is within the scope of the various provisions primarily aimed at preventing the abusive marketing strategy just explained, particularly the rules enacted by Member States to implement Art 9 of the Distance Contracts Directive. The delivery of goods not conforming to the recipient’s order is a problem to be treated more extensively within the context of the seller’s liability for defects in goods delivered under a contract of [[Sale|sale]].


Undue or failed transfers could be reclaimed by way of the ''condictio indebiti'' or other ''condictiones'' ([[Restitution in Case of Undue Transfer|restitution in case of undue transfer]]). However, some ''condictiones'', eg the ''condictio sine causa'' or the ''condictio ex iniusta causa'', also covered cases in which the defendant had received the claimant’s property not by transfer, but in some other way, such as an act of God or of a third party, and where there was no legal basis for retaining the benefit received. The ''condictio furtiva'' could be brought against thieves and their heirs and was directed at restitution of stolen objects or their value.
=== b) Early history ===


In other circumstances, the ''actio negotiorum gestorum ''was applied by analogy: if, in a case of an unauthorized [[Management of Another’s Affairs without a Mandate (Negotiorum Gestio)|management of another’s affairs (''negotiorum gestio'')]], the manager’s claim for reimbursement of his expenses failed because he had managed the principal’s affair for his own benefit, he could at least bring a claim against the principal insofar as the latter was enriched by the manager’s actions. This claim could be used to help those who had made improvements, whether in good or bad faith, to another’s property. Conversely, where A had, in good faith, disposed of B’s property in favour of C, the principal’s claim against the manager for handing over everything received in course of the management could be used, by way of analogy, to grant B a claim against A for the surrender of the price received from C.
Delivery of unsolicited goods as a marketing tool was discussed among the learned jurists on the European continent as far back as the early 19th century. In Germany the opinion seems to have prevailed among legal scholars for some time that the recipient of unsolicited goods was bound to pay for them if he failed to send them back. At around the same time, some German states enacted statutes designed to put an end to the practice of marketing lottery tickets by sending them to unwitting customers who had never ordered them. According to these statutes, when the recipient had been completely passive there would be no valid contract.


Finally, there was the ''actio de in rem verso''. Initially, it was applied in cases where persons in power (slaves, sons and daughters) contracted with third parties. As [[Representation|representation]] was not recognized in Roman law, the third party had no contractual claim against the principal (owner/ father). But if and insofar as the third party’s contractual performance had enhanced the principal’s patrimony, the principal could be forced to give up the benefits by the ''actio de in rem verso''. Later, the action was extended to cases where a free person contracted on behalf of another: if A granted a loan to B, who was secretly acting for C, A could claim repayment from C to the extent that C had received the money from B. This ''actio de in rem verso utilis'', directed towards the enrichment received, was extended to two-party cases in the 18th century, for instance where a contractual performance was made in favour of a minor and the contract was void for lack of the guardian’s consent. As the ''condictio'', leading to strict liability, could not be brought against a minor ([[Restitution in Case of Undue Transfer|restitution in case of undue transfer]]), there remained the ''actio de in rem verso utilis'', forcing the minor to give up his enrichment. The ''actio de in rem verso'' of the ''usus modernus'' generally covered cases where the defendant’s patrimony had been enriched, whether directly or indirectly, by the claimant. Thus, it became the basis for a general action of unjustified enrichment in many legal sys tems.
Of course, the tendency among German lawyers and legal scholars to find a binding contract in cases where one party had failed to react in any way to the delivery of unsolicited goods encouraged the use of this marketing technique. The opinion of the jurists was based on the maxim ‘''qui tacet consentire videtur''’, derived from canon law. It was only from the middle of the 19th century onwards that a stricter approach prevailed. At this point, it was accepted by legal scholars that a contract would only be concluded ([[Contract (Formation)|contract (formation)]]) when the recipient started to use the goods, processed them, or made his intention to keep the goods known to the outside world (though not necessarily to the supplier) in any other way. The German courts also arrived at the conclusion that passive behaviour on the part of the recipient was an insufficient basis for the conclusion of a contract. However, if the supplier and the recipient were professional merchants, the courts were still ready to accept that a contract had been formed (see eg ''Oberappellationsgericht Dresden'' 18 October 1859, ''Seuffert’s Archiv'' 13, 509 f.). The French courts stated on several occasions in the 1870s that the recipient of unsolicited goods did not enter into a binding contract by silently accepting the goods. The maxim ‘qui tacet consentire videtur’ lost ground in Europe, and the contracting parties’ right to self-determination became more important ([[Freedom of Contract|freedom of contract]]). The English courts reached similar conclusions in the second half of the 19th century. In ''Felthouse v Bindley'' [1862] EWHC CP J35, 142 English Reports 1037, the Court of Common Pleas held that silence does not constitute a valid acceptance of an offer. Although the decision was not based on a case of delivery of unsolicited goods, it nonetheless brought English law in line with the trends prevailing on the Continent.


The late scholastics of 16th century Spain were the first who put all these scattered remedies together in order to form a general action of unjustified enrichment. Regarding non-contractual liability, they made a distinction between claims to compensate a loss on the one hand and claims for giving up an enrichment received on the other hand. This idea was taken up and refined by the school of [[Natural Law|natural law]].
With these court decisions, the rule that no contract of sale would be concluded in cases in which the recipient of unsolicited goods remained passive became prevalent throughout Europe. The question of what—if any—duties of care vis-à-vis the goods were incumbent on the recipient remained open. It was still possible to assume that a contract would be concluded as soon as the recipient started using the goods or that the recipient would be liable for [[Damages|damages]] in the case of destruction of the goods.


== 3. Unjustified enrichment in the European codifications ==
=== c) Further development since the middle of the 20th century ===


The basis of a codified general claim concerning unjustified enrichment was often the ''actio de in rem verso'', as in the Prussian codification ([[Allgemeines Landrecht für die Preußischen Staaten (ALR)|''Allgemeines Landrecht für die Preußischen Staaten'']]) and in the Austrian Civil Code ([[Allgemeines Bürgerliches Gesetzbuch (ABGB)|''Allgemeines Bürgerliches Gesetzbuch'']]). The French legislature, however, rejected its inclusion into the [[Code Civil|''Code civil'']], believing that the ''condictio indebiti'' and the analogous application of the ''negotiorum gestio'' claims were sufficient to redress unjustified enrichment. However, a general action in unjust enrichment, called ''actio de in rem verso'', was introduced by the judiciary in the famous ''Boudier'' case of 1892 (Cass. req., 15.6.1892, D.P. 1892.1.596). Legal systems which follow the tradition of the ''actio de in rem verso'' (apart from those mentioned above, also Spain, Italy and the Netherlands) still distinguish between the ''condictio indebiti'' or ''sine causa ''as a claim for restitution of undue transfers on the one hand, and a general claim of unjustified enrichment on the other. The latter usually requires the enrichment of the defendant, a corresponding impoverish-ment of the claimant, a causal link, and the lack of a legal basis. It is also usually subsidiary to any other possible claims. The general claim is, in principle, aimed at the surrender of the enrichment, although in the Netherlands it takes the shape of a claim for compensation and is merely limited by the defendant’s enrichment. There is no unanimity whether restitution in cases of undue transfers (the old ''condictio indebiti'') is a wholly different remedy or (as it is increasingly seen) a special case of unjustified enrichment.
In the late 19th century, the English courts, unlike those in Germany and France, were not called upon to decide cases involving the delivery of unsolicited goods. In the second half of the 20th century, however, the practice of sending unsolicited goods seems to have become particularly widespread in England. In 1971 the English parliament, following the model of legislation in several states of the United States, enacted a statute to suppress this practice, which was now termed ‘inertia selling’. Some European countries followed suit in the following decades. In 1997, Art 9 of the Distance Contracts Directive made it obligatory for all Member States to prohibit the delivery to a consumer of unsolicited goods combined with a demand for payment. Article 9 also required Member States to ensure that the consumer was not required to give any consideration in exchange for the unsolicited goods and that his silence could not be regarded as an acceptance of the offer implicit in the delivery. The directive forced all countries which had not previously taken particular legislative measures against inertia selling to do so. It also induced changes in existing legislation, including in England. Directive 2005/29/EC on unfair commercial practices and the national laws enacted to implement this directive constitute the latest step in the continuing fight against inertia selling.


The German solution is based on the rejection of the ''actio de in rem verso'' by the pandectists and on Savigny’s teachings of the ''condictio sine causa generalis'' as a general action encompassing all cases in which a defendant has been unjustifiably enriched at the claimant’s expense. The German Civil Code ([[Bürgerliches Gesetzbuch (BGB)|''Bürgerliches Gesetzbuch'']]) therefore contains a unitary claim of unjustified enrichment for cases where someone has received something without legal basis, either by the claimant’s performance or otherwise at his expense. A similar general claim of unjustified enrichment, including the ''condictio indebiti'', can be found in Swiss, Portuguese and Greek law. In Germany, it has been the source of innumerable controversies: does the general claim of unjustified enrichment have to be restricted in order to be manageable and, if so, in what manner? Is it actually a unitary claim or a collection of different actions with different characteristics? Eventually, the ‘doctrine of separation’ (''Trennungslehre'') developed by Walter Wilburg and Ernst von Caemmerer became widely accepted. It distinguishes between cases of undue or failed transfers (''Leistungskondiktion''), infringement of the claimant’s rights by the defendant (''Eingriffskondiktion''), expenditure made on another’s property (''Verwendungskondiktion'') and payment of another’s debt (''Rückgriffskondiktion''). In every category, the requirements ‘at the expense of’ and ‘without legal basis’ have to be determined in a different manner.
== 2. Trends of legal development ==


== 4. Development in England ==
The statutes against inertia selling, which now exist everywhere in Europe, are unanimous in stating that the recipient’s silence must never be construed as an acceptance of the supplier’s offer. In addition to this basic rule, the statutes exclude any contractual or statutory duties on the part of the recipient to keep the goods, handle them with care, or restore them to the supplier. In their strict denial of any rights to the supplier, the recent statutes thus go beyond what was achieved by the repudiation of the rule ‘qui tacet consentire videtur’ at the end of the 19th century and—in some cases—beyond what is required by the Distance Contracts Directive.


For a long time, the principle of unjustified enrichment was viewed with suspicion in England, as there seemed to be the danger of a vague jurisprudence of natural justice and equity. Restitutionary claims based on failed transfers were labelled ‘quasi-contract’ in the 19th century and thus formed an appendix to the law of contract. Claims for the surrender of benefits gained by way of infringement of another’s property operated under the name ‘waiver of tort’. In addition, restitutionary claims were also part of the law of equity, eg claims for the surrender of gains made in breach of a fiduciary duty, or claims against third parties who had received trust property. It was not until the second half of the 20th century that scholars, inspired by the American [[Restatements|restatements]] and the work of Robert Goff and Gareth Jones, began to collect the various different cases under the name ‘restitution’ or ‘unjust enrichment’ and to organize them systematically. In 1991, the House of Lords finally recognized the existence of a separate law of unjust enrichment (''Lipkin Gorman v Karpnale Ltd'' [1991] 2 AC 548).
The delivery of unsolicited goods is universally regarded as a practice that is contrary to fair competition. Provisions to that effect supplement the regulations concerning the relationship between the supplier and the recipient. The consequences in competition law vary between the different legal systems. They include injunctions at the motion of competitors or consumer associations, administrative measures against the offending business entity, and the imposition of criminal penalties on those personally responsible ([[Unfair Competition (Consequences)|unfair competition (consequences)]]). Some countries have even enacted special criminal statutes which make it an offence to deliver unsolicited goods in order to procure the conclusion of a contract.


Regarding taxonomy, English scholars went their own way. According to the teachings of Peter Birks, a claim in restitution/unjust enrichment requires a so-called ‘unjust factor’, which is used to identify the receipt of a benefit at another’s expense as unjust. These unjust factors usually refer to the transferor’s will, which may have been vitiated (due to mistake, duress, compulsion, undue influence or minority) or qualified (where counter-performance or another event forming the basis of the transfer—as in fact known by the transferee—did not occur). Other unjust-factors refer to the transferee’s behaviour (free acceptance) or to particular policy reasons. Whether there is a legal basis for the enrichment is irrelevant. The fact that the claimant, by his performance, discharged an existing liability towards the defendant is, at most, the basis for a defence against a restitutionary claim. Because the purpose of the transfer is not taken into account, a claim in restitution for mistake is available regardless of whether the claimant intended to discharge an obligation that did not actually exist, made a gift for erroneous reasons, or improved another’s property in the mistaken belief of being the owner. Problems in identifying the correct unjust factor, in particular in cases involving payments on void contracts, caused Birks to abandon his teachings in 2003 and, following the continental tradition, to base claims of unjust enrichment on an ‘absence of basis’.
The laws specifically designed to fight the use of the delivery of unsolicited goods as a marketing tool are only applicable between a consumer and a professional acting in the course of his trade, business or profession ([[Consumers and Consumer Protection Law|consumers and consumer protection law]]). Thus, the rules are less severe when unsolicited goods are delivered by one consumer to another or by one professional to another. However, even where no special provisions of consumer protection law apply, the passivity of the recipient alone cannot lead to the formation of a binding contract. This follows from the universal rejection of the rule ‘qui tacet consentire videtur’ since the late 19th century. In line with this universal principle, sets of rules for international trade between professionals such as the CISG (Art 18(1)2) and the UNIDROIT PICC (Art 2.1.6(2)2) state that mere silence or passivity of one party may not qualify as the acceptance of a contractual offer.


== 5. Common structures and problems ==
== 3. Details ==


The majority of European legal systems have a claim of unjust(ified) enrichment which is composed of three elements: (1) the defendant must have received a benefit (2) at the expense of the claimant and (3) without justification, ie without a legal basis or in some other ‘unjust’ way. There is no unified approach to interpreting the criteria ‘at the expense of’ and ‘without justification’ in detail, in particular as to whether the claim of unjustified enrichment requires the claimant to have suffered a loss. Some legal systems also have further requirements, such as correspondence between the defendant’s gain and the loss suffered by the claimant, immediacy of the shift of wealth between claimant and defendant, or a general subsidiarity of unjustified enrichment claims. The law of unjustified enrichment is generally considered a counterpart to the law of [[Contract|contract]] and the [[Law of Torts/Delict, General and Lex Aquilia|law of torts/delict]]. However, the questions of its ''ratio'', its scope of application and, in particular, whether there should be an independent law of unjustified enrichment at all have consistently provoked considerable controversy and discussion. Are claims for restitution in case of undue transfers, the surrender of profits arising from an infringement of other’s rights, claims for reimbursement of expenses by someone helping in an emergency, or the apportionment between solidary debtors ([[Solidary Obligations|solidary obligations]]) part of the law of unjustified enrichment, or are they separate institutions? Is the law of unjustified enrichment, more than other areas of law, characterized by equitable considerations? Does it constitute an independent branch of law, or does it exist merely to close gaps in other branches? Should, perhaps, the unity of the law of unjustified enrichment be abandoned and the individual claims integrated into the branches of law (contract, discharge of obligations, fiduciary obligations, law of wrongs, ''negotiorum gestio'') that they relate to?
=== a) No contract ===


== 6. Enrichment caused by an act of the claimant ==
Similar to the provisions of the CISG ([[Sale of Goods, International (Uniform Law)|sale of goods, international (uniform law)]]) and the [[UNIDROIT Principles of International Commercial Contracts (PICC)]], the Distance Contracts Directive Art 9(2) states that ‘absence of a response’ on the part of the recipient of unsolicited goods does not constitute an expression of consent. Many national rules go further and exclude any duty to pay for the goods received, even when the recipient uses the goods as his property, sells them to a third person, processes them, or simply destroys them. Until the end of the 20th century, the prevailing approach in most European legal systems had been to regard the contract as validly concluded in such cases and force the recipient to pay the price, even if the supplier of the goods was not aware of the recipient’s acts. The current rules use different strategies to ensure that no court and no legal scholar finds a valid contract in such cases. Austrian law, for example, explicitly states that the fact that the recipient starts using the goods received, or performs similar acts with respect to the goods, must not be construed as a valid acceptance. Switzerland seeks to cut off the potential formation of a contract even earlier: under Swiss law, the delivery of unsolicited goods may not be construed as a valid offer. Germany has no clear statutory rule and therefore the issue as to which acts of the recipient may still lead to the conclusion of a contract is subject to discussion among legal writers. The prevailing opinion, however, takes the view that no contract is formed just because the recipient starts using the goods or because of similar acts.


If the defendant’s enrichment is due to an act done by the claimant, the continental legal systems ask whether the claimant consciously benefited the defendant with respect to a particular purpose such as discharging a contractual or other obligation, ie whether he acted with regard to a specific legal basis between him and the defendant. If this is the case, and the legal basis is lacking, his remedy is [[Restitution in Case of Undue Transfer|restitution in case of undue transfer]] (''condictio indebiti''/''sine causa'', ''Leistungskondiktion''), a remedy to be found separate from, or within, the general law of unjustified enrichment.
The provision of Art II.-3:401(1)(a) DCFR is in line with a general tendency to deny the existence of a contract even in cases in which the recipient did not remain entirely passive. According to Art II.-3:401(1)(a) DCFR, no ‘action or inaction by a consumer’, in relation to unsolicited goods delivered to the consumer, can bring about a valid contract. However, the rule in the DCFR is probably not meant to exclude the possibility that under particular circumstances a contract might arise. If the recipient actually pays for the unsolicited goods, this will constitute an implied acceptance of the supplier’s offer notwithstanding the existing statutory provisions against inertia selling in most systems. The same is true when the recipient explicitly declares his intention to conclude a contract with the supplier. Article II.-3:401(1)(a) DCFR should not be construed so as to exclude the recognition of a contract in such cases.


However, the act by the claimant enriching the defendant can be made for reasons other than a legal basis towards the defendant. Improvements of another’s property and payment of another’s debt are cases where most legal systems, at least to a certain extent, grant claims of unjustified enrichment. Following the tradition of the ''ius commune'', the continental laws have special rules for improvements by possessors which differ from the unjustified enrichment rules, thus causing problems of coordination ([[Improvement of Another’s Property|improvement of another’s property]]). In case of payment of another’s debts, recourse against the debtor may be based not only on unjustified enrichment but also on [[Management of Another’s Affairs without a Mandate (Negotiorum Gestio)|management of another’s affairs without a mandate (''negotiorum gestio'')]] or on [[Subrogation|subrogation]]. The fundamental question in both situations is whether a claim in unjustified enrichment should be available only in particular types of cases (eg where the claimant made expenditure on property he believed to be his) or should be granted freely, even in cases where the claimant benefited the defendant without any mistake or compulsion. The benefit may, furthermore, be of no value to the defendant, eg if the claimant built a house on land the defendant wanted to use for agriculture, or if the discharge of the debt was made shortly before the debt would have become statute-barred. English law takes a hostile view to uninvited intermeddling with another’s affairs. Any claim in unjust enrichment is therefore dependent on the existence of a specific reason, such as mistake or duress. The continental legal systems, on the other hand, often do not restrict the claims of unjustified enrichment but rather protect the defendant by using an extremely subjective test of enrichment when the benefit was forced upon him.
=== b) Exclusion of extra-contractual claims ===


In some cases the defendant’s gain is merely an indirect consequence of the claimant’s act, eg where he constructed a dam which also protects neighbouring properties. All legal systems tend to exclude claims of unjustified enrichment in these cases. To this end, some laws work with a requirement of an immediate shift of wealth, some with a restrictive interpretation of the criterion ‘at the expense of’, while yet others exclude claims of unjust enrichment where the claimant acted out of self-interest.
The provisions which make it impossible to construe the recipient’s passivity or even the fact that he starts using the goods as an acceptance giving rise to a valid contract of sale make it equally impossible to find a contract of deposit or a similar contractual relationship between the supplier and the recipient, under which a duty on the part of the recipient to handle the goods received with care might arise. Moreover, most legal systems also exclude claims in tort against the recipient as well as claims for [[Unjustified Enrichment|unjustified enrichment]] arising from the recipient’s handling of the goods.


== 7. Enrichment by infringement of another’s right ==
Finally, claims for the return of the goods themselves, whether based on the supplier’s right of ownership or on any other legal ground, are excluded in most European legal systems (either by explicit statutory provisions or according to the prevailing interpretation of the law). Again, the conceptual vehicles used in different systems to achieve the desired end (protection of the recipient against claims to return the goods to the supplier) vary. Some rules provide that there cannot be a claim for the return of the goods, others (like the English statute) require that the goods be regarded in law as a gift to the recipient, or state that the recipient may keep them without having to pay (this is the Dutch approach). If the statute limits itself to stating that no claims may be brought (as in German law), the question remains whether the recipient becomes the owner of the goods or whether (and how) he can acquire ownership. If the recipient cannot acquire ownership (and the supplier has no legal possibility of regaining control of the goods), there will be a permanent disjunction between possession and ownership. The supplier’s ownership would be a ''dominium sine re''. Article II.-3:401(1)(b) DCFR excludes all extra-contractual claims but makes no statement regarding the consequences of this exclusion of remedies for the supplier’s right of ownership. Whatever the legal construction, the exclusion of all claims for the return of the goods amounts to a factual expropriation of the supplier and is therefore not uncontroversial. The harsh criticism of the implementation of the Distance Contracts Directive in Germany was to a considerable extent caused by this de facto expropriation of the supplier.


Where someone obtains a benefit through unlawful use, disposal or consumption of another’s property, European laws usually give the holder of that property a claim against the infringer for the surrender of the benefit. However, this claim is not universally considered a claim in unjustified enrichment. In France and Italy, due to the subsidiary nature of unjustified enrichment, a claim of damages in delict has precedence, while in the Netherlands claims in unjustified enrichment often fail because they require a loss suffered by the claimant. Nonetheless, most laws do not allow a defence based on the assertion that the rights holder could not or would not have achieved the gain in question since the claimant having suffered loss or damage is either not a requirement of a claim of unjustified enrichment or is already seen to lie in the fact that his property was used without his consent. The claim is usually for the objective value of the benefit, ie the price the infringer would have had to pay if he had used the right lawfully. A claim directed at the profits achieved by the infringer will only be allowed in special cases, notably in cases of intentional infringement ([[Disgorgement of Profits|disgorgement of profits]]).
=== c) Error ===


The restitutionary claim can be explained in two different ways. Under English law, restitution is traditionally seen as a possible remedy, in addition to damages, in case of a wrong such as a tort or a breach of fiduciary duty. Restitution rests on the wrong as such. There is no consensus as to whether restitution for wrongs is part of the law of unjust enrichment at all or whether it rather belongs to the law of torts or the law of trusts. In opposition to that, there is the theory of attribution (''Zuweisungsgehalt''), to be found mainly in Germany. Here, the claim is not based on an unlawful act as such, but on the fact that a legal position has been infringed that is attributed (or: assigned) by the law to the claimant for his exclusive use and benefit. A claim in unjustified enrichment by the victim of an infringement will only fail if the gain is legally unattributable to him, for instance if it was achieved through the sale of degrading photographs of the victim, or if it is a reward paid by a third party to the defendant for causing bodily harm to the victim. In order to give the victim a claim for the profits in such circumstances, one often finds a combined solution, as in Dutch law and in the Draft Common Frame of Reference (Art 6:104 [[Burgerlijk Wetboek (BW)|''Burgerlijk Wetboek'' (BW)]], Art VI.-6:101(4) DCFR), which allows for gains made by an infringement to be surrendered both through the law of unjustified enrichment and through the law of delict.
The Distance Contracts Directive does not contain a provision dealing with cases of error: most national implementations provide that extra-contractual claims for the return of goods or for monetary compensation are not excluded if the unsolicited goods were delivered because of an error on the part of the supplier. Article II.-3:401(2)(b) DCFR also provides for an exception in such cases. Such exceptions from the strict rules designed to burden the supplier are warranted if the supplier erroneously assumes that the recipient had ordered the goods, or if goods that have actually been ordered are delivered to the wrong person. Depending on the way the exception is framed, provisions of this type may also be applicable when a buyer who actually ordered goods receives deficient goods or goods of a different description than those ordered. If the exceptions cover such cases, they delimit the respective areas of application of the regime governing the delivery of unsolicited goods and the rules regarding the seller’s responsibility for defects of the delivered goods ([[Sale|sale]]).


== 8. Indirect enrichment ==
=== d) Further sanctions ===


Indirect enrichment cases cause particular problems. A benefit may pass from the claimant to a third party and then to the defendant; or the claimant may perform an obligation towards a third party and, in so doing, benefit the defendant. At least where the third party is insolvent, there is the desire to give the claimant a direct claim against the defendant who, after all, is undoubtedly enriched. On the other hand, there is the need to protect the privity of commercial relations and the security of receipts: the defendant should only be exposed to claims by the person who was his contract partner and from whom he received the benefit. He should not be concerned with problems within the relationship between the claimant and the third party.  
Even before the European Union started its crusade against inertia selling, it was commonly accepted in all Member States that the delivery of unsolicited goods constituted a practice that is contrary to fair competition. Now Annex I of the Directive on unfair commercial practices compels all Member States to treat the delivery of unsolicited goods as an unfair commercial practice. While national legislatures are free to introduce further sanctions, the directive forces them to provide at least a possibility for competitors to obtain injunctive relief against a person or corporation who uses inertia selling as a marketing tool.


A direct claim against the defendant is generally permitted where the claimant had a proprietary interest in the object received by the defendant (and a vindication or a proprietary remedy is no longer possible because the claimant has meanwhile lost his title or because the defendant disposed of the property). The claimant’s proprietary interest in the object received by the defendant, making a direct claim possible, can be particularly far-reaching under English law, which acknowledges not only property at law, but also property in equity. In cases of failed transactions, equitable title often remains with the transferor. Moreover, ownership in equity extends to money and to substitutes for the original property. However, all legal systems protect defendants from restitutionary claims when they have acquired the property in good faith and for value.
In England and France, the delivery of unsolicited goods constitutes an infraction for which a fine can be imposed. In Germany, inertia selling is not defined as a criminal or regulatory offence.  


Where a claimant had no proprietary title in respect of the object received by the defendant, any claim of unjustified enrichment is dependent on the extent to which a legal system allows the ''actio de in rem verso'' or, in English terms, ‘leapfrogging’. French law is particularly far-reaching as it allows even benefits transferred under a valid contract with the third party to be reclaimed from the defendant, as long as a legal basis is absent in the defendant’s relationship with the now-insolvent third party. Conversely, English law seems not to allow restitution of benefits transferred under a valid obligation towards a third party. German law is even more restrictive, refusing a direct claim against the defendant also in the case where the contract between the claimant and the third party is invalid, as long as the claimant intended to perform in favour of the third party. However, most laws allow an exception to the restrictions of restitution claims in indirect enrichment cases, where the defendant received the benefit gratuitously.
=== e) Unsolicited services ===


== 9. Unification projects ==
Traditionally, the interest of lawyers and lawmakers regarding inertia selling was focused on the delivery of unsolicited goods. The provision on unsolicited services featured less prominently in legislation and legal literature. However, it was specifically addressed by the English statute from 1971. Article 9 of the Distance Contracts Directive subjects the provision of unsolicited services to the same regime as the delivery of unsolicited goods. Accordingly, Member States have introduced national rules against inertia selling applicable to the unsolicited provision of services as well.


Book VII of the DCFR contains extensive model rules for the law of unjustified enrichment, which follow an approach independent of the existing European laws. The basic rule in Art VII.-2:101 is that enrichment is unjustified unless either the defendant had a right to it on the basis of a contract, other juridical act, a court order or a rule of law, or the claimant freely and without error consented to the enriching transaction. Leaving aside the unusual relation of rule and exception, this design is remarkably similar to the unjust factor theory of English law. In addition, there are special rules for disgorgement of profits in delict and against trustees (Arts VI.-6:101(4), X.-7:203). Article 10 of the Rome II Regulation (Reg 864/2007) contains a conflicts of law rule on obligations arising from unjust enrichment.
== 4. Inertia selling in international codes and restatements of the law ==
 
The most important provisions regarding inertia selling in international codifications have already been mentioned: Art 18(1)2 CISG and Art 2.1.6.1 (2)2 PICC contain a refutation of the old rule ‘qui tacet consentire videtur’.'' ''Article 2:202(2) PECL contains a similar statement. Article 16(3) of the draft produced by the ''Académie des Privatistes Européens ''([[Code Européen des Contrats (Avant-Projet)|''Code européen des contrats (Avant-Projet)'']]) treats the question in which cases silence may be construed as the acceptance of a contractual offer in great detail. Generally, silence does not constitute a binding acceptance, according to Art 16(3) lit. a) and b), however, previous dealings of the party or common usage may lead to another result. Silence may also be construed as the acceptance of an offer if the proposed contract creates duties only for the offeror. There is no special provision for the delivery of unsolicited goods.
 
The provisions mentioned so far only reflect the legal situation that had already been achieved by the end of the 19th century when agreement had been reached in most European countries that ‘qui tacet consentire videtur’'' ''was not a suitable basis for dealing with the phenomenon of inertia selling. Only Art II.-3:401 DCFR reflects the development which has taken place since the 1970s and the changes introduced by the Distance Contracts Directive and the Unfair Commercial Practices Directive.


==Literature==
==Literature==
Eltjo Schrage (ed), ''Unjust Enrichment—The Comparative Legal History of the Law of Restitution'' (1995); Tony Weir (tr), Konrad Zweigert and Hein Kötz, ''Introduction to Comparative Law'' (3rd&nbsp;edn, 1998) 537&nbsp;ff; Peter Schlechtriem, ''Restitution und Bereicherungsausgleich in Europa—Eine rechtsvergleichende Darstellung'','' vols 1–2'' (2000 and 2001); Frank L Schäfer, ''Das Bereicherungsrecht in Europa—Einheits- und Trennungslehren im gemeinen'','' deutschen und englischen Recht'' (2001); David Johnston and Reinhard Zimmermann (eds), ''Unjustified Enrichment—Key Issues in Comparative Perspective'' (2002); Jack Beatson and Eltjo Schrage (eds), ''Cases'','' Materials and Texts on Unjustified Enrichment'' (2003); Reinhard Zimmermann (ed), ''Grundstrukturen eines Europäischen Bereicherungsrechts'' (2005); Sonja Meier, ‘No Basis: A Comparative View’ in Andrew Burrows and Lord Rodger of Earlsferry (eds), ''Mapping the Law—Essays in Memory of Peter Birks'' (2006) 343; Ernst von Caemmerer and Peter Schlechtriem (eds), ''Restitution''/''Unjust Enrichment and Negotiorum Gestio'' in IECL X (2007); Daniel Visser, ‘Unjustified Enrichment in Comparative Perspective’ in Mathias Reimann and Reinhard Zimmermann (eds), ''The Oxford Handbook of Comparative Law'' (2008), 969. </div>
Roger Nerson, ‘Le Silence (Étude du Droit français)’ in ''Eranion Maridakis'','' vol&nbsp;II ''(1963) 399; Rudolf B Schlesinger (ed), ''Formation of Contracts'','' vol&nbsp;II'' (1968)&nbsp;1071&nbsp;ff; Christoph Krampe,'' ''‘Qui tacet, consentire videtur’ in ''Festschrift Paul Mikat'' (1989) 367; Parviz Owsia, ‘Silence: Efficacy in Contract Formation. A Comparative Review of French and English Law’ (1991) 40 ICLQ 784; Arthur T von Mehren, ‘The Formation of Contracts’ in IECL VII/1 (1991) ch&nbsp;9; Werner Flume, ‘Vom Beruf unserer Zeit für Gesetzgebung’ (2000) ZIP 1427;'' ''Kerstin Geist, ''Die Rechtslage bei Zusendung unbestellter Waren nach Umsetzung der Fernabsatzrichtlinie'' (2002); Adrian Müller-Helle, ''Die Zusendung unbestellter Ware'' (2005); Franz Dorn, ‘§&nbsp;241a. Unbestellte Leistungen’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), ''Historisch-kritischer Kommentar zum BGB'','' vol&nbsp;II''/''1'' (2007); Daniel Walter, ''Die rechtliche Behandlung der Erbringung unbestellter Leistungen nach §&nbsp;241a BGB'' (2010).</div>




[[Category:A–Z]]
[[Category:A–Z]]
[[de:Bereicherungsrecht]]
[[de:Unbestellte_Waren]]

Latest revision as of 18:39, 5 June 2025

by Thomas Rüfner

1. Delivery of unsolicited goods and its consequences in European private law

a) Delivery of unsolicited goods before and after the formation of a contract

If a person receives goods that he has not ordered, two basic questions arise: the first is whether and under what circumstances the recipient of the goods is obliged to pay for them even though he did not order them. Secondly, if there is no duty to pay, it must be asked whether there is at least a duty to handle the goods with care and to give them back to the supplier. The answers are largely dependent on the reasons that led to the delivery. The supplier may have delivered the goods in order to fulfil a contractual duty (eg to deliver some other goods). In that case, the delivery of goods different from those due under the contract is either the result of a mistake or a deliberate attempt to discharge the contractual obligation without (fully) complying with the contract’s terms. In both cases, the delivery of unsolicited goods is an attempt (though a flawed one) to perform an existing contractual agreement. In other cases the delivery of unsolicited goods constitutes an attempt to procure the conclusion of a contract: the supplier sends goods to a recipient in order to induce him to buy the goods and pay for them.

Modern European legislation generally aims at preventing suppliers from using the delivery of unsolicited goods as a means to procure the conclusion of a contract. The various statutory provisions tend to make the supplier’s position as uncomfortable as possible. Consequently, this entry will focus on the fight against the delivery of unsolicited goods as a marketing tool (or, in the words of the European Distance Contracts Directive (Dir 97/7), a ‘promotional technique’). We will only deal with the delivery of unsolicited goods in the course of the performance of an existing contract as far as this phenomenon is within the scope of the various provisions primarily aimed at preventing the abusive marketing strategy just explained, particularly the rules enacted by Member States to implement Art 9 of the Distance Contracts Directive. The delivery of goods not conforming to the recipient’s order is a problem to be treated more extensively within the context of the seller’s liability for defects in goods delivered under a contract of sale.

b) Early history

Delivery of unsolicited goods as a marketing tool was discussed among the learned jurists on the European continent as far back as the early 19th century. In Germany the opinion seems to have prevailed among legal scholars for some time that the recipient of unsolicited goods was bound to pay for them if he failed to send them back. At around the same time, some German states enacted statutes designed to put an end to the practice of marketing lottery tickets by sending them to unwitting customers who had never ordered them. According to these statutes, when the recipient had been completely passive there would be no valid contract.

Of course, the tendency among German lawyers and legal scholars to find a binding contract in cases where one party had failed to react in any way to the delivery of unsolicited goods encouraged the use of this marketing technique. The opinion of the jurists was based on the maxim ‘qui tacet consentire videtur’, derived from canon law. It was only from the middle of the 19th century onwards that a stricter approach prevailed. At this point, it was accepted by legal scholars that a contract would only be concluded (contract (formation)) when the recipient started to use the goods, processed them, or made his intention to keep the goods known to the outside world (though not necessarily to the supplier) in any other way. The German courts also arrived at the conclusion that passive behaviour on the part of the recipient was an insufficient basis for the conclusion of a contract. However, if the supplier and the recipient were professional merchants, the courts were still ready to accept that a contract had been formed (see eg Oberappellationsgericht Dresden 18 October 1859, Seuffert’s Archiv 13, 509 f.). The French courts stated on several occasions in the 1870s that the recipient of unsolicited goods did not enter into a binding contract by silently accepting the goods. The maxim ‘qui tacet consentire videtur’ lost ground in Europe, and the contracting parties’ right to self-determination became more important (freedom of contract). The English courts reached similar conclusions in the second half of the 19th century. In Felthouse v Bindley [1862] EWHC CP J35, 142 English Reports 1037, the Court of Common Pleas held that silence does not constitute a valid acceptance of an offer. Although the decision was not based on a case of delivery of unsolicited goods, it nonetheless brought English law in line with the trends prevailing on the Continent.

With these court decisions, the rule that no contract of sale would be concluded in cases in which the recipient of unsolicited goods remained passive became prevalent throughout Europe. The question of what—if any—duties of care vis-à-vis the goods were incumbent on the recipient remained open. It was still possible to assume that a contract would be concluded as soon as the recipient started using the goods or that the recipient would be liable for damages in the case of destruction of the goods.

c) Further development since the middle of the 20th century

In the late 19th century, the English courts, unlike those in Germany and France, were not called upon to decide cases involving the delivery of unsolicited goods. In the second half of the 20th century, however, the practice of sending unsolicited goods seems to have become particularly widespread in England. In 1971 the English parliament, following the model of legislation in several states of the United States, enacted a statute to suppress this practice, which was now termed ‘inertia selling’. Some European countries followed suit in the following decades. In 1997, Art 9 of the Distance Contracts Directive made it obligatory for all Member States to prohibit the delivery to a consumer of unsolicited goods combined with a demand for payment. Article 9 also required Member States to ensure that the consumer was not required to give any consideration in exchange for the unsolicited goods and that his silence could not be regarded as an acceptance of the offer implicit in the delivery. The directive forced all countries which had not previously taken particular legislative measures against inertia selling to do so. It also induced changes in existing legislation, including in England. Directive 2005/29/EC on unfair commercial practices and the national laws enacted to implement this directive constitute the latest step in the continuing fight against inertia selling.

2. Trends of legal development

The statutes against inertia selling, which now exist everywhere in Europe, are unanimous in stating that the recipient’s silence must never be construed as an acceptance of the supplier’s offer. In addition to this basic rule, the statutes exclude any contractual or statutory duties on the part of the recipient to keep the goods, handle them with care, or restore them to the supplier. In their strict denial of any rights to the supplier, the recent statutes thus go beyond what was achieved by the repudiation of the rule ‘qui tacet consentire videtur’ at the end of the 19th century and—in some cases—beyond what is required by the Distance Contracts Directive.

The delivery of unsolicited goods is universally regarded as a practice that is contrary to fair competition. Provisions to that effect supplement the regulations concerning the relationship between the supplier and the recipient. The consequences in competition law vary between the different legal systems. They include injunctions at the motion of competitors or consumer associations, administrative measures against the offending business entity, and the imposition of criminal penalties on those personally responsible (unfair competition (consequences)). Some countries have even enacted special criminal statutes which make it an offence to deliver unsolicited goods in order to procure the conclusion of a contract.

The laws specifically designed to fight the use of the delivery of unsolicited goods as a marketing tool are only applicable between a consumer and a professional acting in the course of his trade, business or profession (consumers and consumer protection law). Thus, the rules are less severe when unsolicited goods are delivered by one consumer to another or by one professional to another. However, even where no special provisions of consumer protection law apply, the passivity of the recipient alone cannot lead to the formation of a binding contract. This follows from the universal rejection of the rule ‘qui tacet consentire videtur’ since the late 19th century. In line with this universal principle, sets of rules for international trade between professionals such as the CISG (Art 18(1)2) and the UNIDROIT PICC (Art 2.1.6(2)2) state that mere silence or passivity of one party may not qualify as the acceptance of a contractual offer.

3. Details

a) No contract

Similar to the provisions of the CISG (sale of goods, international (uniform law)) and the UNIDROIT Principles of International Commercial Contracts (PICC), the Distance Contracts Directive Art 9(2) states that ‘absence of a response’ on the part of the recipient of unsolicited goods does not constitute an expression of consent. Many national rules go further and exclude any duty to pay for the goods received, even when the recipient uses the goods as his property, sells them to a third person, processes them, or simply destroys them. Until the end of the 20th century, the prevailing approach in most European legal systems had been to regard the contract as validly concluded in such cases and force the recipient to pay the price, even if the supplier of the goods was not aware of the recipient’s acts. The current rules use different strategies to ensure that no court and no legal scholar finds a valid contract in such cases. Austrian law, for example, explicitly states that the fact that the recipient starts using the goods received, or performs similar acts with respect to the goods, must not be construed as a valid acceptance. Switzerland seeks to cut off the potential formation of a contract even earlier: under Swiss law, the delivery of unsolicited goods may not be construed as a valid offer. Germany has no clear statutory rule and therefore the issue as to which acts of the recipient may still lead to the conclusion of a contract is subject to discussion among legal writers. The prevailing opinion, however, takes the view that no contract is formed just because the recipient starts using the goods or because of similar acts.

The provision of Art II.-3:401(1)(a) DCFR is in line with a general tendency to deny the existence of a contract even in cases in which the recipient did not remain entirely passive. According to Art II.-3:401(1)(a) DCFR, no ‘action or inaction by a consumer’, in relation to unsolicited goods delivered to the consumer, can bring about a valid contract. However, the rule in the DCFR is probably not meant to exclude the possibility that under particular circumstances a contract might arise. If the recipient actually pays for the unsolicited goods, this will constitute an implied acceptance of the supplier’s offer notwithstanding the existing statutory provisions against inertia selling in most systems. The same is true when the recipient explicitly declares his intention to conclude a contract with the supplier. Article II.-3:401(1)(a) DCFR should not be construed so as to exclude the recognition of a contract in such cases.

b) Exclusion of extra-contractual claims

The provisions which make it impossible to construe the recipient’s passivity or even the fact that he starts using the goods as an acceptance giving rise to a valid contract of sale make it equally impossible to find a contract of deposit or a similar contractual relationship between the supplier and the recipient, under which a duty on the part of the recipient to handle the goods received with care might arise. Moreover, most legal systems also exclude claims in tort against the recipient as well as claims for unjustified enrichment arising from the recipient’s handling of the goods.

Finally, claims for the return of the goods themselves, whether based on the supplier’s right of ownership or on any other legal ground, are excluded in most European legal systems (either by explicit statutory provisions or according to the prevailing interpretation of the law). Again, the conceptual vehicles used in different systems to achieve the desired end (protection of the recipient against claims to return the goods to the supplier) vary. Some rules provide that there cannot be a claim for the return of the goods, others (like the English statute) require that the goods be regarded in law as a gift to the recipient, or state that the recipient may keep them without having to pay (this is the Dutch approach). If the statute limits itself to stating that no claims may be brought (as in German law), the question remains whether the recipient becomes the owner of the goods or whether (and how) he can acquire ownership. If the recipient cannot acquire ownership (and the supplier has no legal possibility of regaining control of the goods), there will be a permanent disjunction between possession and ownership. The supplier’s ownership would be a dominium sine re. Article II.-3:401(1)(b) DCFR excludes all extra-contractual claims but makes no statement regarding the consequences of this exclusion of remedies for the supplier’s right of ownership. Whatever the legal construction, the exclusion of all claims for the return of the goods amounts to a factual expropriation of the supplier and is therefore not uncontroversial. The harsh criticism of the implementation of the Distance Contracts Directive in Germany was to a considerable extent caused by this de facto expropriation of the supplier.

c) Error

The Distance Contracts Directive does not contain a provision dealing with cases of error: most national implementations provide that extra-contractual claims for the return of goods or for monetary compensation are not excluded if the unsolicited goods were delivered because of an error on the part of the supplier. Article II.-3:401(2)(b) DCFR also provides for an exception in such cases. Such exceptions from the strict rules designed to burden the supplier are warranted if the supplier erroneously assumes that the recipient had ordered the goods, or if goods that have actually been ordered are delivered to the wrong person. Depending on the way the exception is framed, provisions of this type may also be applicable when a buyer who actually ordered goods receives deficient goods or goods of a different description than those ordered. If the exceptions cover such cases, they delimit the respective areas of application of the regime governing the delivery of unsolicited goods and the rules regarding the seller’s responsibility for defects of the delivered goods (sale).

d) Further sanctions

Even before the European Union started its crusade against inertia selling, it was commonly accepted in all Member States that the delivery of unsolicited goods constituted a practice that is contrary to fair competition. Now Annex I of the Directive on unfair commercial practices compels all Member States to treat the delivery of unsolicited goods as an unfair commercial practice. While national legislatures are free to introduce further sanctions, the directive forces them to provide at least a possibility for competitors to obtain injunctive relief against a person or corporation who uses inertia selling as a marketing tool.

In England and France, the delivery of unsolicited goods constitutes an infraction for which a fine can be imposed. In Germany, inertia selling is not defined as a criminal or regulatory offence.

e) Unsolicited services

Traditionally, the interest of lawyers and lawmakers regarding inertia selling was focused on the delivery of unsolicited goods. The provision on unsolicited services featured less prominently in legislation and legal literature. However, it was specifically addressed by the English statute from 1971. Article 9 of the Distance Contracts Directive subjects the provision of unsolicited services to the same regime as the delivery of unsolicited goods. Accordingly, Member States have introduced national rules against inertia selling applicable to the unsolicited provision of services as well.

4. Inertia selling in international codes and restatements of the law

The most important provisions regarding inertia selling in international codifications have already been mentioned: Art 18(1)2 CISG and Art 2.1.6.1 (2)2 PICC contain a refutation of the old rule ‘qui tacet consentire videtur’. Article 2:202(2) PECL contains a similar statement. Article 16(3) of the draft produced by the Académie des Privatistes Européens (Code européen des contrats (Avant-Projet)) treats the question in which cases silence may be construed as the acceptance of a contractual offer in great detail. Generally, silence does not constitute a binding acceptance, according to Art 16(3) lit. a) and b), however, previous dealings of the party or common usage may lead to another result. Silence may also be construed as the acceptance of an offer if the proposed contract creates duties only for the offeror. There is no special provision for the delivery of unsolicited goods.

The provisions mentioned so far only reflect the legal situation that had already been achieved by the end of the 19th century when agreement had been reached in most European countries that ‘qui tacet consentire videtur’ was not a suitable basis for dealing with the phenomenon of inertia selling. Only Art II.-3:401 DCFR reflects the development which has taken place since the 1970s and the changes introduced by the Distance Contracts Directive and the Unfair Commercial Practices Directive.

Literature

Roger Nerson, ‘Le Silence (Étude du Droit français)’ in Eranion Maridakis, vol II (1963) 399; Rudolf B Schlesinger (ed), Formation of Contracts, vol II (1968) 1071 ff; Christoph Krampe, ‘Qui tacet, consentire videtur’ in Festschrift Paul Mikat (1989) 367; Parviz Owsia, ‘Silence: Efficacy in Contract Formation. A Comparative Review of French and English Law’ (1991) 40 ICLQ 784; Arthur T von Mehren, ‘The Formation of Contracts’ in IECL VII/1 (1991) ch 9; Werner Flume, ‘Vom Beruf unserer Zeit für Gesetzgebung’ (2000) ZIP 1427; Kerstin Geist, Die Rechtslage bei Zusendung unbestellter Waren nach Umsetzung der Fernabsatzrichtlinie (2002); Adrian Müller-Helle, Die Zusendung unbestellter Ware (2005); Franz Dorn, ‘§ 241a. Unbestellte Leistungen’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol II/1 (2007); Daniel Walter, Die rechtliche Behandlung der Erbringung unbestellter Leistungen nach § 241a BGB (2010).

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