Задължението за връщане на вещ, получена без основание
The Obligation to return a corporeal thing, received without legal ground

Summary/Abstract: The article 57 from the Law of Obligations and Contracts (LOC) expressly deals with the restitutionary obligation, based on unjustified transfer of goods. The provision is part of a separate section of LOC, devoted to unjustified enrichment as source of obligations (art. 55-59 LOC). This section regulates two different types of situations. The first one, known in Bulgarian doctrine as special cases of unjustified enrichment (articles 55-58 LOC), is concerned with the transfer of things without legal ground (i.e. without an obligation or relevant for the law fact). Its origin can be traced back to the Roman Law action condictio. The second one lays down a general claim of subsidiary nature, based on unjustified enrichment at another’s expense (art. 59 LOC). Article 55 LOC, the basic rule regarding unjustified transfer of things, distinguishes three cases: where there was no legal ground ab initio; where the transfer has been made with a view of expected future justification and where the legal ground ceased to exist retroactively. Article 57 LOC applies in every of these three cases if the object transferred is a corporeal thing. The claim of the transferor is of personal nature (in personam) even when he claims the goods back in kind. The basis of the claim is not the ownership, but simply the fact that there was a transfer without legal ground. In fact an enrichment of the recipient is not necessary, as well. As far the Bulgarian private law accepts the causal system of title’s transfer, the lack of legal ground (for instance when a contract is null and void) means that the recipient has not acquired the ownership of the goods received. The enrichment becomes relevant once the goods cannot be returned in kind i. e. when they were alienated or perished. Here, only the liability of the good faith recipient is limited to the actual benefits, he or she has derived. The bad faith recipient owes to compensate the transferor with a sum equal to the real value of the thing, no matter his or her enrichment. On the other hand, he or she would have to surrender everything obtained in exchange of the alienated thing, even if it exceeds the impoverishment of the transferor. Considering the above sketched legal regime of the obligation to return unjustifiably received thing, the author argues that its basic idea is not to remedy the unjust enrichment of the recipient, but simply the undoing of the transfer, made without legal ground.

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