Over onwettigheid, onzedelijkheid en terugvordering

The focus of this study is the extent to which the role of the parties’ conduct and the type of norm that was violated should play a role in restitution cases. In Roman law, if a payment was made contrary to good morals, a remedy was not granted if the plaintiff had dirty hands. Similar barring of an unworthy plaintiff has been adopted in modern law, for example in South-Africa and France. In certain cases, a violation of the law, in particular acting contrary to good morals, may be deemed a reason for disallowing restitution, thus preserving the position of the parties. In Dutch law, such a ‘moral’ rule disallowing restitution was not accepted under the former civil code but in modern law it is possible to refuse restitution in exceptional cases.

In my view, in the case of a discharged void contract, restitution should be awarded. It should not be possible to avoid this by invoking immorality on the part of the plaintiff. As a result the person who performed under a void contract is entitled to recovery or compensation of the value of the transaction. The task of the law of restitution is to undo enrichment and disallowing restitution in effect preserves the unjustified enrichment. The seriousness of the norm violation and the conduct of the parties should not be factors when deciding claims based on money had and received. The rules governing restitution are not an appropriate means to punish parties for misconduct. Private law cannot offer a satisfactory solution for contracts of a criminal nature or contracts contrary to good morals. Combating immoral conduct can be best left to the criminal law.

Dissertation: http://hdl.handle.net/11370/dca6c5f8-5fe3-455d-bca3-f3a162cdad4c