NO Voluntary Sources.
occur in everyday life where a person agrees to a benefit given without the fruit of his will. The obligation arises, sometimes the margins of a negotiation or consensus as in the case of contracts.
The Enrichment without cause
people's heritage is in constant motion widen and restrict the normal course of life situations. This movement is always a cause or legal precedent. When this case is missing and one of the two assets is depleted at the expense of another, without justification, is that we are in the presence of illegal enrichment. (Article 1817 CCP) (Silva Alonso)
is in this case that the law gives a restitutionary depleted, to return to its normal state assets, which was made before generated enrichment. In doctrine, this action is called actio in rem verso. (Borda)
2.1 Concept.
According to the master Guillermo Borda, is unjust enrichment when a person experiences an increase in equity and another suffers an impoverishment in the same proportion, without a legitimate legal reason .
to Dr. Miguel Angel Pangrazio, unjust enrichment is the benefit or advantage of an economic nature obtained by a person with impairment of other assets and has absolutely no justification.
Historical Background
The possibility that someone can get rich at the expense of harm to another, without lawful cause, is so repugnant to the sense of justice and logic that it is not surprising that the action is an old legal tradition.
In Roman law, the principle is enshrined in Pomponio text as follows: "natural right, is fair that nobody gets richer than another, to the detriment and injury of another. " various actions were recognized, particularly in rem verso to force the rich to repay. The legislation
English in the games, was adopted this principle, " any damage must be enriched by another." Item 7, Law 17.
In modern law, the principle that no one can get rich without cause is universal . Some states have expressly set out, like Italian, Mexican, Venezuelan, Soviet, for example. Other laws, not stipulated; have made numerous applications of it, so it must be admitted that it has the character of a general principle applicable to cases not provided.
Figure in the Civil Code of Paraguay.
In our Civil Code, the figure of unjust enrichment is legislated in the Arts. 1817 and 1818, prescribing the effects and consequences arising from the situation that arises when it occurs. Establishes the rules for compensation and the action corresponding to the injured unjustly enriched by imposing the obligation to return the value obtained at the expense of that. (Martyniuk Baran)
Requirements:
According Guillermo Borda, so that appropriate action is necessary they are meeting the following requirements:
an enrichment of the defendant;
an impoverishment of actor;
a causal link between enrichment and impoverishment;
the lack of a legitimate reason to justify that enrichment
In the literature there is agreement on these requirements. However, there is hesitation on two other conditions, also required by law and are:
that the applicant does not further action, and
who has acted in good faith.
2.5 Effects
Once the enrichment without cause, for the impoverished is born an action for damages.
2.6 Constraints
Actionrepair action has two limits namely
a) shall not exceed enrichment further would be unfair and unfounded;
b) Not to exceed impoverishment, as it exceeded, the claim would have no legitimate interest, and be enriched depleted without cause.
If there is an enrichment greater than the depletion, or vice versa, the limit of compensation is always given by the lesser amount.
party business management
party business management assumes the care and attention of a business, or a plurality of business, interest or benefit of a third, he knows it or not. It requires the business manager is not authorized by the owner or forced into it as a result of a mandate, or by referral from another cause. (Guardianship, custody, etc.).
3.1 Concept
party business management includes the assumption that someone is meddling in the affairs of another, no specific mandate to tacit mediating. Not connote a concurrence of wills, whereby one person acts on behalf of another. Is an autonomous source of obligations. (Silva Alonso)
3.2 Elements
party business management has the following key elements: foreign business
: management conducted by whoever is managing business should cover not belongs, ie it from someone else. Mood
force the Dominus: Management must be undertaken with the intention of forcing the Dominus, otherwise it would be a liberal. Business
existing: The business must exist for the management. She should not create it for you technically possible to speak of another's business management.
Free:
The law does not empower the manager to charge a fee or reward, but for reasons of fairness and attentive to the special circumstances, the judge may set a modest fee by the person concerned.Manager Responsibility:
The manager is subject to the obligations inherent in the president, as established by the CCP (Art. 891, 1811)
3.3 Effects.
obligations ManagerThe manager is subject to all obligations imposed on an acceptance agent (Article 1811 CCP),
is required for the continuation and completion of the business, until the owner or his heirs are able to provide for themselves. (Art. 1809)
The manager must notify the business owner who took over management, awaiting response for its continuation, unless the delay is not prejudicial. (Art. 1810)
also responds to all the blame on the exercise of management, yet the accident, if risky operations has led to the dominus was not used do, or had acted in self-interest more than that, with the right of recourse against the owner for costs incurred, plus interest, but can not claim any remuneration for management. The right of action, however ceases if any act contrary to the express prohibition of the owner, unless the manager having a legitimate interest to do so. (Art. 1813)
The manager is personally liable towards third parties with which it contracted, even if it had the owner's name, pending its ratification of the management. (Art. 1814)
3.4 of Dominus
The Dominus is required to fulfill the obligations assumed by the manager on his behalf and reimburse the expenses necessary or useful already made, plus interest from the day they started it.
also may be required by justice, to reward the manager, modestly, in the event that management has delivered a utility, for reasons of equity .-
Writing:
Abog. Roberto Carlos Araujo Alonso.
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