Unjust enrichment. Applicable law. Conditions

DREPT CIVIL ŞI PROCESUAL CIVIL

Abstract

In the case of legal acts committed before the entry into force of the current Civil Code, the provisions of the old Civil Code of 1864 apply, in relation to which it is necessary to verify the conditions to be met in order to admit an action for repetition, the basis of which is a lawful legal act.

It cannot be accepted that the application in time of the law in the hypothesis analysed will be determined by reference to Article 118 of Law No 71/2011 according to which "Non-contractual obligations arising before the entry into force of the Civil Code are subject to the methods of discharge provided for therein", since the hypothesis of the rule is of strict application and interpretation, being applicable only with regard to the analysis of the cases of discharge of the obligation generated by the existence of a legal fact.

It is also not possible to consider that the law applicable to the lawful act is in a mandatory correlation with the law applicable to the limitation of the right of action, since it is not excluded that the conditions for the admission of an action based on the existence of a lawful act are governed by the former Civil Code, while the extinctive limitation of the right of action is governed by the provisions of the new Civil Code, given the special rule contained in Article 201 of Law No 71/2011 implementing the Civil Code.