КОНКУРЕНЦИЈА ЗАХТЕВА ЗА НАДОКНАДУ ШТЕТЕ И ЗАХТЕВА ИЗ НЕОСНОВАНОГ ОБОГАЋЕЊА У СЛУЧАЈУ НЕОВЛАШЋЕНЕ УПОТРЕБЕ ТУЂЕ СТВАРИ ИЛИ ТУЂЕГ ПРАВА У СВОЈУ КОРИСТ
CONCURRENCE OF ACTIONS BETWEEN THE LAW OF TORT AND THE LAW OF UNJUSTIFIED ENRICHMENT IN CASES OF UNAUTHORIZED USE OF ANOTHER’S SUBJECTIVE RIGHT

Summary/Abstract: Non-contractual liability arising out of damage caused to another and unjustified enrichment are two separated and autonomous bodies of law in most legal systems. Legally relevant damage is loss or injury which a person suffers on his/her right or interest worthy of legal protection, and which the responsible person is obliged to compensate. Unjustified enrichment is transfer of wealth without legal justification, which the enriched person is obliged to return in naturam to the person at whose expense the benefit is acquired, or to pay its objective value. Although autonomous, these branches of law are not entirely independent from each other. There are situations where the same event can be qualified both as damage as well as unjustified enrichment, establishing the right for the injured person to choose between the action in tort and the one in unjustified enrichment. Cases of condictio indebiti (mistaken payments) and of condictio sine causa (performances rendered under void or voidable contract) rarely satisfy the legal notion of damage and has little relevance for the law of tort. These performances should be reversed according to the rules of unjustified enrichment. Overlap between the tort law and the law of unjustufied enrichment emerges when a person without authority interferes with the right of another (not necessarily in the blameworthy manner) and thereby acquires benefits. The unauthorized disposal or use of anothers property or personality right are qualified as torts (wrongs) and the injured person, instead of restitution of the acquired benefits, can claim compensation for the damage caused. This is possible for the action in tort and the action in unjustified enrichment concure to each other. Yet, their alternative nature does not allow the injured party to use them at the same time: she must choose between them. In this paper the author analyzes elements of unjustified enrichment in the tort law and vice versa, focusing on the above mentioned instances of concurrence of actions, as well as on the legal basis of liability (based-fault responsibility and responsibility independent of fault). She emphasizes the connection between these separated sources of obligation in cases where the injured party waives the claim for damage and, instead, claims the return of profit gained by the unauthorized use of her personality right (for example, right to name or image) or commercial trademark or copyright.

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