1 ABSTRACT UNJUST ENRICHMENT UNDER ENGLISH AND CZECH LAW The topic of presented thesis is "Unjust Enrichment under English and Czech Law". It aims to provide a comprehensive analysis and comparison of legal rules governing unjust enrichment in English and Czech law. The thesis is systematically divided into four principal chapters which are further subdivided. The first chapter presents an introduction to unjust enrichment. It provides a brief historical overview and a description of legal nature of unjust enrichment. It also aims to bring a basic comparison of the common law system and the civil law system to which English law and Czech law belong. Unjust enrichment on the European level is analysed in the second chapter. Two chosen soft law instruments of the European private law are presented here, namely Draft Common Frame of Reference and Principles of European Law of Unjust Enrichment, which set forth non-binding rules for the functioning of unjust enrichment. The third chapter is focused on the English law of unjust enrichment. It primarily brings the analysis of the requirements of unjust enrichment under English law. These requirements, which are based on the case law of the English courts, are as follows: (1) benefit, (2) at the claimant's expense, (3) unjust factor, and (4) lack of defence....

1 Abstract This thesis deals with the institute of unjust enrichment extending to commercial law. It is focused on specific aspects of existence of this institute in commercial law. Particularly it means an issue of the limitation of unjust enrichment claims in business relationships as well as other special elements of unjust enrichment in commercial law regulations such as the question of repayment of the performance caused by the withdrawal, the protection of the company name claims and protection against unfair competition, rights of industrial property and bill of exchange and cheques enrichment. Although the work is primarily based on existing legislation, it is not limited to the examination of the issue from the perspective of re-codification of private law. The thesis analyzes the various provisions of the relevant commercial law regulations whose interpretation is in theory and practice greatly divided, and with their detailed analysis using initially established theoretical basis, trying to make their own suggestions.

Collective administration of copyright, focusing on the unjust enrichment from the collective rights manager's point of view Key words: Collective administration, copyright, unjust enrichment This master's thesis is focused on the collective management of copyright in the Czech Republic and it especially focuses on the issue of claiming an unjust enrichment from the colletive administrator's perspective. The main aim of the theses is to introduce the aforementioned and systematically discuss the legal adjustments and the functioning of the institutions on both theoretical and practical levels. The theses is divided into two imaginary halves, the first half focuses on the collective administration of copyright in general terms, the second half deals with the enforcement of unjust enrichment by the collective administrator itself. The thesis is divided into ten chapters. The first chapter deals with the basic definitions of the concept of collective administration and it's inclusion into the Czech legal system as well as the definitions of the basic concepts and issues used in this area of law. The second chapter briefly discusses the history of collective administration in the world as well as in the Czech Republic. The third chapter describes the rights which are the subject of collective...

1 The burden of proof in the disputes for unjust enrichment Abstract This diploma thesis deals with the institute of the burden of proof. Its aim is to analyse the distribution of the burden of proof in disputes for unjust enrichment. The thesis consists of an introduction, four main chapters, which are further internally divided and the conclusion. The introduction is focused mainly on the reasons of author's choice of the topic. The first chapter contains the general characteristics and interpretation of key concepts as well as related institutes, whose basic knowledge will be a key to other parts of the text. It explains the differences between the concepts of proof, counter-proof and objection. It then analyses the standard of proof needed to prove certain facts. It also describes the state of non liquet and analyses the individual procedural obligations and burdens of the parties. The subject of the second chapter of the thesis is the term of the burden of proof, which can be divided into the objective and subjective burden of proof. The subjective burden of proof can be further subdivided into the abstract and concrete burden of proof. The chapter goes on to analyse selected theories of distribution of the burden of proof, while not neglecting the negative theory of proof. In the partial conclusion,...

This research critically analyses and compares how the United Arab Emirates (UAE)1 Law and English and Welsh (EW) Law regulates obligations in a contract, for a thing that is to come into existence in the future, namely a construction contract. Uncertainty/speculation as to how an obligation is to be performed in UAE Law is termed gharar. The word that is synonymous with this terminology in EW Law is “risk”. The extent of gharar or ‘risk’ (these terms are used on an interchangeable basis in this thesis) in an obligation plays a fundamental role in the profitability of a construction contract. Where losses become unacceptable, particularly for the Contractor, a dispute will arise. These circumstances may be in conflict with UAE Law, which obligates parties to a contract to ensure circulation of wealth by maintaining the anticipated profit to be made from a contract. This analysis also reviews how the level of gharar or ‘risk’ can be increased by operation of two types of provision that are included in standard forms of construction contract such as the International Federation of Consulting Engineers, Geneva, Switzerland (FIDIC) Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer 1st Ed. 1999 (FIDIC99). The first is a provision that releases the Employer from liability where the Contractor does not give timely notice of an Employer’s act of prevention. The second is a provision giving the Employer a discretion to act in an opportunistic manner, and exempt or limit his liability. It considers how FIDIC99 should be applied to control gharar or ‘risk’ in a positive way. It also identifies similarities between how UAE Law controls gharar and that of the notion of parties’ reasonable expectations in contract Law (herein referred to as parties’ expectations), and how relational contracts operate to ensure parties achieve their expectations.

This thesis is about corporate attribution in private law. Unlike human persons, companies are artificial legal persons. They lack a physical body with which to act, and a mind with which to think. English law therefore developed the concept of attribution so that legal rules could be applied to companies. Attribution is the process of legal reasoning by which the acts and states of mind of human individuals acting for a company are treated as that of the company, so as to establish the company’s rights against and obligations owed to other parties. This thesis examines the rules of attribution across the private law of obligations, focusing on the law of contract, tort, unjust enrichment, and selected aspects of equitable liability. Three main arguments are made in this thesis. First, there is a sharp distinction between the rules of attribution and the substantive rules of private law to which they apply. The former belongs in the law of persons, and it concerns when the acts and states of mind of an individual can be attributed to a company. The latter belongs in the law of obligations. Second, the same rules of attribution should be, and have largely been used across the entire expanse of private law. Regardless of the area of private law in which the question of attribution arises, the same question is being asked, and so the law’s answer should be the same. Like should be treated alike. This is normatively desirable, because it ensures coherence across private law. Third, it is therefore possible to state the rules of attribution that apply in private law. The acts of an individual A will be attributed to the company C where they were (i) specifically authorised (‘specific authority’), (ii) where A performs an act within the class of acts that A has power to do on behalf of C, even if A is acting in breach of duty (‘actual authority’), or (iii) where A has either been placed in a position or been held out by C such that a reasonable person in the position of a third party would reasonably believe that A had the power to act for C (‘apparent authority’). A’s knowledge will be attributed to C where it is material to the class of acts that A had specific or actual authority to do on behalf of C. Although commonly thought to be a series of diverse, disparate rules found in different doctrines and different areas of law, the rules of attribution form a remarkably coherent, consistent whole across private law.

O objetivo da dissertação é investigar os Pressupostos da Obrigação de Restituir o Enriquecimento sem Causa no Código Civil Brasileiro. O enriquecimento sem causa, que tem antecedentes romanos, é reconhecido no Brasil independente desde os tempos do Império, passou por uma rejeição quando do advento do Código Civil de 1916, que não o previu expressamente, porém retomou sua força ao longo do século XX, ao fim do qual já era corrente a opinião de que se tratava de fonte de obrigações autônoma. Na vigência do Código Civil de 1916 não havia unanimidade quanto à enumeração e ao preenchimento de sentido dos pressupostos da obrigação restituitória. Uma minoria dispensava os requisitos do empobrecimento e da correlação entre o enriquecimento e o empobrecimento em favor de um novo pressuposto, qual seja, o de que o enriquecimento se dê à custa de outrem. O Código Civil de 2002, nos arts. 884 a 886, regulou expressamente o enriquecimento sem causa como fonte de obrigação, sendo que os autores atuais têm em geral indicado como seus pressupostos a existência de um (i) enriquecimento que ocorra (ii) à custa de outrem sem (iii) justa causa e que (iv) não concorra com outro remédio jurídico (i.e., subsidiariedade), não sendo essenciais os requisitos do empobrecimento e da correlação. O estudo dos principais paradigmas cristalizados na doutrina estrangeira, especialmente na portuguesa e na alemã, permitiu a conclusão de que deve ser adotado o paradigma da divisão do instituto do enriquecimento sem causa, pelo qual se investigam os pressupostos da obrigação de acordo com as suas diversas categorias, a saber, no Brasil, o enriquecimento por prestação, o enriquecimento por intervenção e o enriquecimento por despesas efetuadas por outrem. O enriquecimento por prestação tem por pressupostos o (i) enriquecimento em sentido real que (ii) ocorre por prestação (iii) sem justa causa, entendida esta última como a frustração do fim da prestação. O enriquecimento por intervenção tem por pressupostos (i) o enriquecimento (ii) obtido à custa de outrem (iii) sem causa jurídica ou, mais analiticamente, o (i) enriquecimento em sentido patrimonial (ii) obtido pela intromissão em direitos de outrem, quando na verdade (iii) é reservado pela ordem jurídica ao titular da posição jurídica afetada. Já o enriquecimento por despesas efetuadas por outrem tem por pressupostos o (i) enriquecimento em sentido patrimonial cuja (ii) conservação seja vedada pelo ordenamento jurídico e que decorra de uma (iii) despesa efetuada por outrem, sendo a restituição limitada, na circunstância de o beneficio ser imposto, ao que resultar de dispêndios de necessários. A regra da subsidiariedade não consubstancia um pressuposto propriamente dito, pois não integra o suporte fático da obrigação restituitória, funcionando mais como uma norma de sobredireito que fixa o caráter especialíssimo dos arts. 884 e 885 do Código Civil, e tem um sentido concreto, ou seja, somente obsta a pretensão restituitória o meio jurídico alternativo que concretamente forneça a mesma solução que é garantida pelo instituto do enriquecimento sem causa. Por fim, pela análise de dois grupos de casos comuns na jurisprudência, concluiu-se que, por falta de familiaridade com a lei, os tribunais brasileiros, ao menos quanto aos casos pesquisados, ainda não deram efetividade ao enriquecimento sem causa como fonte de obrigação. / The purpose of the present thesis is to unveil the requisites of the obligation based on the law of restitution according to the Brazilian Civil Code. The law of restitution, which has its roots in the Roman law, has been acknowledged in independent Brazil since the 19th century. In spite of the fact that it has not been expressly stated in the Brazilian Civil Code of 1916, the authors throughout the 20th century have recognized the unjust enrichment as an obligation-creating event. Nevertheless, the doctrine under the Civil Code of 1916 was not unanimous regarding the enumeration and the content of the requirements of the restitutionary obligation. In fact, there was a minority that downplayed the requisites of both impoverishment and correlation between the enrichment and the impoverishment in favor of others, i.e., that the enrichment occurs at the plaintiffs expense. The rise of the unjust enrichment as an obligation-creating event had its climax with the publication of the 2002 Brazilian Civil Code. Specifically, its articles 884, 885 and 886 included the phenomenon amidst the source of obligations. Under the new Code, it has been generally assumed that the requisites underlying the unjust enrichment are the presence of an (i) unjust (ii) enrichment (iii) at the plaintiffs expense that (iv) does not compete with an alternative legal remedy (i.e., rule of subsidiarity). The requirements of impoverishment and correlation aforementioned were abandoned by most authors. An adequate answer to the questions regarding the requisites of the restitutionary obligation, however, demands the analysis of the paradigms crystallized in the foreign doctrine, especially of the German and Portuguese legislation. It has been concluded that the paradigm of the categorization of the unjust enrichment has to be adopted. In compliance with this perspective, the requisites underlying the restitutionary obligation have to be investigated pursuant to the different categories, namely the enrichment through transfers, the enrichment through interference and the enrichment through expenditures made by the plaintiff. The requisites of the restitution based on enrichment through transfers are (i) the enrichment in its objective sense that (ii) occurs through the performance of a conscious and goal oriented patrimonial increment in which it is evident (iii) the failure of this particular goal. Importantly, this goal is sought to be assessed objectively from the unilateral manifestation of the performer, in conformity to the good-faith principle. The restitution based on enrichment through interference has as requirements (i) the enrichment in its subjective sense (ii) obtained through the interference with the rights (iii) legally reserved to the plaintiff. Finally, the requirements of the restitution based on enrichment through expenditures made by the plaintiff are (i) the subjective enrichment (ii) that the law forbids and that is originated from (iii) an expense effectuated by the plaintiff. In the particular case of an imposed enrichment, the restitution is constrained to the incontrovertible benefits resulting from the act of the plaintiff. Because the subsidiarity rule does not integrate the fattispecie of the restitutionary obligation, it does not substantiate a requisite by itself. The subsidiarity rule functions rather as a secondary norm that determines the character of lex specialis of the articles 884 and 885 of the Civil Code. Additionally, the subsidiarity rule has a concrete character, i.e., the restitutionary pretensions are only prevented by an alternative legal remedy that offers an effective solution that is identical to the one ensured by the law of restitution.

Unjust enrichment under business law The aim of this work is to analyze the unjust enrichment with its overlap to commercial law. The introduction of the text summarizes the historical development of unjust enrichment from ancient Roman law provisions, including the Austrian General Civil Code and the Civil Code from 1950 up to the history of the currently effective codex published under no. 40/1964 Coll. This historical analysis points out certain analogies with the current regulation and the development of elements that are the foundation of today's unjust enrichment legislation. The following part of the work contains analysis of the current de lege lata legislation of unjust enrichment in the commercial law, the subsequent part constitutes the crucial part of this work that is concerned directly with unjust enrichment in the commercial law. First, it analyses the term of business contractual obligations, then it analyses the relationship between the Civil Code and the Commercial Code and finally it sums up the expert discussion relating to the unjust enrichment in the commercial law and subsequently the author presents his personal view of the problem and the effects of the unjust enrichment, especially on the question of limitation period, are considered briefly. The final chapter consists...

O objetivo da dissertação é investigar os Pressupostos da Obrigação de Restituir o Enriquecimento sem Causa no Código Civil Brasileiro. O enriquecimento sem causa, que tem antecedentes romanos, é reconhecido no Brasil independente desde os tempos do Império, passou por uma rejeição quando do advento do Código Civil de 1916, que não o previu expressamente, porém retomou sua força ao longo do século XX, ao fim do qual já era corrente a opinião de que se tratava de fonte de obrigações autônoma. Na vigência do Código Civil de 1916 não havia unanimidade quanto à enumeração e ao preenchimento de sentido dos pressupostos da obrigação restituitória. Uma minoria dispensava os requisitos do empobrecimento e da correlação entre o enriquecimento e o empobrecimento em favor de um novo pressuposto, qual seja, o de que o enriquecimento se dê à custa de outrem. O Código Civil de 2002, nos arts. 884 a 886, regulou expressamente o enriquecimento sem causa como fonte de obrigação, sendo que os autores atuais têm em geral indicado como seus pressupostos a existência de um (i) enriquecimento que ocorra (ii) à custa de outrem sem (iii) justa causa e que (iv) não concorra com outro remédio jurídico (i.e., subsidiariedade), não sendo essenciais os requisitos do empobrecimento e da correlação. O estudo dos principais paradigmas cristalizados na doutrina estrangeira, especialmente na portuguesa e na alemã, permitiu a conclusão de que deve ser adotado o paradigma da divisão do instituto do enriquecimento sem causa, pelo qual se investigam os pressupostos da obrigação de acordo com as suas diversas categorias, a saber, no Brasil, o enriquecimento por prestação, o enriquecimento por intervenção e o enriquecimento por despesas efetuadas por outrem. O enriquecimento por prestação tem por pressupostos o (i) enriquecimento em sentido real que (ii) ocorre por prestação (iii) sem justa causa, entendida esta última como a frustração do fim da prestação. O enriquecimento por intervenção tem por pressupostos (i) o enriquecimento (ii) obtido à custa de outrem (iii) sem causa jurídica ou, mais analiticamente, o (i) enriquecimento em sentido patrimonial (ii) obtido pela intromissão em direitos de outrem, quando na verdade (iii) é reservado pela ordem jurídica ao titular da posição jurídica afetada. Já o enriquecimento por despesas efetuadas por outrem tem por pressupostos o (i) enriquecimento em sentido patrimonial cuja (ii) conservação seja vedada pelo ordenamento jurídico e que decorra de uma (iii) despesa efetuada por outrem, sendo a restituição limitada, na circunstância de o beneficio ser imposto, ao que resultar de dispêndios de necessários. A regra da subsidiariedade não consubstancia um pressuposto propriamente dito, pois não integra o suporte fático da obrigação restituitória, funcionando mais como uma norma de sobredireito que fixa o caráter especialíssimo dos arts. 884 e 885 do Código Civil, e tem um sentido concreto, ou seja, somente obsta a pretensão restituitória o meio jurídico alternativo que concretamente forneça a mesma solução que é garantida pelo instituto do enriquecimento sem causa. Por fim, pela análise de dois grupos de casos comuns na jurisprudência, concluiu-se que, por falta de familiaridade com a lei, os tribunais brasileiros, ao menos quanto aos casos pesquisados, ainda não deram efetividade ao enriquecimento sem causa como fonte de obrigação. / The purpose of the present thesis is to unveil the requisites of the obligation based on the law of restitution according to the Brazilian Civil Code. The law of restitution, which has its roots in the Roman law, has been acknowledged in independent Brazil since the 19th century. In spite of the fact that it has not been expressly stated in the Brazilian Civil Code of 1916, the authors throughout the 20th century have recognized the unjust enrichment as an obligation-creating event. Nevertheless, the doctrine under the Civil Code of 1916 was not unanimous regarding the enumeration and the content of the requirements of the restitutionary obligation. In fact, there was a minority that downplayed the requisites of both impoverishment and correlation between the enrichment and the impoverishment in favor of others, i.e., that the enrichment occurs at the plaintiffs expense. The rise of the unjust enrichment as an obligation-creating event had its climax with the publication of the 2002 Brazilian Civil Code. Specifically, its articles 884, 885 and 886 included the phenomenon amidst the source of obligations. Under the new Code, it has been generally assumed that the requisites underlying the unjust enrichment are the presence of an (i) unjust (ii) enrichment (iii) at the plaintiffs expense that (iv) does not compete with an alternative legal remedy (i.e., rule of subsidiarity). The requirements of impoverishment and correlation aforementioned were abandoned by most authors. An adequate answer to the questions regarding the requisites of the restitutionary obligation, however, demands the analysis of the paradigms crystallized in the foreign doctrine, especially of the German and Portuguese legislation. It has been concluded that the paradigm of the categorization of the unjust enrichment has to be adopted. In compliance with this perspective, the requisites underlying the restitutionary obligation have to be investigated pursuant to the different categories, namely the enrichment through transfers, the enrichment through interference and the enrichment through expenditures made by the plaintiff. The requisites of the restitution based on enrichment through transfers are (i) the enrichment in its objective sense that (ii) occurs through the performance of a conscious and goal oriented patrimonial increment in which it is evident (iii) the failure of this particular goal. Importantly, this goal is sought to be assessed objectively from the unilateral manifestation of the performer, in conformity to the good-faith principle. The restitution based on enrichment through interference has as requirements (i) the enrichment in its subjective sense (ii) obtained through the interference with the rights (iii) legally reserved to the plaintiff. Finally, the requirements of the restitution based on enrichment through expenditures made by the plaintiff are (i) the subjective enrichment (ii) that the law forbids and that is originated from (iii) an expense effectuated by the plaintiff. In the particular case of an imposed enrichment, the restitution is constrained to the incontrovertible benefits resulting from the act of the plaintiff. Because the subsidiarity rule does not integrate the fattispecie of the restitutionary obligation, it does not substantiate a requisite by itself. The subsidiarity rule functions rather as a secondary norm that determines the character of lex specialis of the articles 884 and 885 of the Civil Code. Additionally, the subsidiarity rule has a concrete character, i.e., the restitutionary pretensions are only prevented by an alternative legal remedy that offers an effective solution that is identical to the one ensured by the law of restitution.

Historically unjust wars have never improved the standard of living for the American citizen and have served to suppress the inherent natural rights of the human beings involved. In conclusion, I combine contemporary and historical arguments to highlight the continuing stream of injustice that exists in American foreign policy.; The conceptual bases of this thesis include the philosophical constructs of Just War Theory, limited government, and natural rights as applied to foreign policy. Just War Theory was originally articulated by St. Augustine and represents the requirements a nation must satisfy to wage war justly. Building upon the basis of Just War Theory, I then split the discussion into two main categories. The first is a historical look at certain American thinkers and their reactions to what they saw as unjust wars based in their strong idealistic goals for humanity. The second is a critical examination of American foreign policy based upon the analytical model arising from these American thinkers. The thesis concludes with an examination of contemporary applications of this analysis with an examination of recent wars that have taken place in the Middle East and an assessment of their just or unjust nature. My historical research examines the arguments of Thomas Paine, Emma Goldman, Henry David Thoreau, and Martin Luther King, Jr. I will review each thinker to highlight their criticisms of the unjust wars in which America has been involved from the 18th Century to the 21st Century. A secondary goal of this research is to trace a pattern of idealistic thinking that is present in American Revolutionary thought. These ideals refer to notions of natural rights, social liberty, economic freedom, and the constant pursuit of justice. By using the established arguments put forth by these four American thinkers, I argue that another unjust war will only bring misery to America and any other nation involved. Finally, my contemporary research develops the CIA term "blowback" and its effect on American foreign policy. By applying the theory of blowback to the current military disputes in which the United States has been or could be involved, I attempt to persuade the reader to resist the notion of engaging in another war.