Along came a spider...

This book is the third of the series of Casebooks on the Common Law of Europe under the General Editorship of Professor Walter van Gerven. The first two books were on Tort Law, principally by Professor van Gerven, and Contract Law, principally by Professor Hugh Beale. With its publication, the series now contains volumes on the three main parts of the law of obligations. Like those books, this one has been prepared by an international team and aims to explore the extent to which, despite differences in approach, concepts and terminology, common principles underlie the laws of unjust or unjustified enrichment in different systems. The authors also share the hope of the authors of the two earlier books that, as was stated in the preface to the book on Tort Law:

"...the book will be used as teaching material in universities and other institutions throughout Europe and elsewhere in order to familiarize future generations of lawyers with each others' legal system and to assess and facilitate the impact of European supranational legal systems on the development of national laws and vice-versa."

This book, however, originated as part of a separate project in which the analysis and comparison was not only between civil law and common law systems but included the laws of unjust enrichment of two "mixed systems", Scots law and South African law. It was only at a relatively later stage, when it was appreciated how similar our aims were, that it was decided to include it in the series.

We have sought to harmonise the book into the series as far as we could, and have followed the style and system of citation and case identification of the other books. Like the book on Contract Law this book concentrates on cases, legislation and doctrinal rules of law while recognizing that there may be deeper difference of philosophy which may be masked by a superficially similar result. But the consequence of the different origin to this African law, which is, of course, not a legal system within the European Union. Secondly at an early stage it was decided to divide the work along national lines rather than by chapters: i.e. for England, Jack Beatson and Mindy Chen-Wishart, for France, Barry Nicholas, for Germany, Martin Schermaier, for the Netherlands, Eltjo Schrage and Floor Gras, for Scotland, Martin Hogg and David Sellar, and for South Africa, Danie Visser. Material was prepared according to an agreed scheme and was then arranged under the different substantive headings. There is also a brief overview in chapter one of the structure of the legal systems considered in the book. Finally, our comparative remarks come at the beginning of each chapter, whereas in the other books in the series they come at the end, and we have laid a greater emphasis upon doctrinal aspects and therefore quoted more extracts than the other books in the series.

The way we have approached the task of comparing the laws of unjust or unjustified enrichment of the countries dealt with is set out in the introduction to chapter one. It is no easy task. The way the law has developed in different countries, the different extent to which they recognize an unified law of enrichment, and the differences in its shape and doctrines have meant that they do not all sit comfortably in the structure we have adopted. For instance, the emphasis in England on the need for a ground for restitution whereas civil law systems tend to ask whether there was a "cause" or a legal "ground" for the benefit to the defendant has led to the lion's share of chapter 6 being English law. Again, civil law jurisdictions find it more difficult to deal with situations in which a tortfeasor has gained more from his tort than the loss inflicted on the victim, and other problems arose in deciding how to deal with three-party situations given Germans law's requirement that the enrichment be "direct". Finally, in England alone some of the subject lies outside the law of obligations and falls within what in the other systems would be the law of property.

The project originated in a conference at the Paul Scholten Institute in the Faculty of law of the University of Amsterdam in March 2000, and the individual contributions were largely completed by August 2001. It was then decided that this work should be included in the Casebooks on the Common Law of Europe series. Dimitri Droshout and his team at the University of Maastricht undertook the task of harmonizing it into the format and style of the series, and Ed Powles assisted in this process at the English end.

One of the first to complete his contribution was Barry Nicholas, who alas died last year before it went on press. He was one of the earliest labourers in the field of comparative unjustified enrichment law, and his quiet authority, impeccable scholarship and generosity with his time and advice have been an inspiration to us. We dedicate this book to his memory with deep respect and affection.

We have been help by many, in particular Walter van Gerven, Dimitri Droshout, Myrthe Duits, Richard Hart and his team at Heart Publishing, Maaike Nagel, Ed Powles, Marie-Anne Sarlet, Mireille Schiffelers, Yleen Simonis, and Otto van Tubbergen. The original conference was generously funded by the Paul Scholten Institute. We are also grateful for support form the University of Cambridge's Yorke Fund and St John's College, Cambridge.
The law is stated as at 1 July 2002, but it has been possible to include some material since that date.

Jack Beaton, Cambridge
Eltjo Schrage, Amsterdam

1 March 2003