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The disputation will be held in Norwegian.
Trial lecture - time and place
Adjudication committee
- Amund Bjøranger Tørum, University of Oslo (leader)
- Berte Elen Konow, University of Bergen (1. opponent)
- Jur. dr. Stefan Lindskog, Former Minister of Justice and President of the Supreme Court (2. opponent)
Chair of defence
Head of Department Margrethe Buskerud Christoffersen
Supervisors
- Professor Knut Kaasen
- Professor Geir Stenseth
Summary
The thesis discusses the unwritten rules in Norwegian law regarding "condictio indebiti" – a rule with Roman roots that provides a legal basis for a restitutionary claim by the payer (claimant) against the recipient (defendant) in the case of a mistaken payment. In common law, this rule is typically referred to as "money had and received," and it is systematically placed within the law of unjust enrichment.
Condictio indebiti is applicable when the claimant, after making a payment, realizes that an error occurred and seeks to reclaim the money transferred. Typical scenarios include double payments, overpayments, payments to the wrong recipient, or payments made where no obligation existed at all. The causative mistake often involves misunderstandings or ignorance of facts, though other reasons may also motivate such payments. Mistaken payments are common in modern societies due to the high volume of daily transactions, making clear and concise rules on restitution essential. However, the Norwegian version of condictio indebiti is exceptionally vague and discretionary, leading to unpredictability for the parties involved.
The thesis’ objectives
One of the thesis’ main objectives has thus been to map and document that a firmer legal structure does exist de lege lata, despite the apparent consensus on today’s «rule» in academic and judicial circles, and as a result establish a proper rule of restitution for mistaken payments.
In the final chapter of my thesis, I have formulated a “restatement” of the Norwegian rules on condictio indebiti, inspired by the Draft Common Frame of Reference and the American Law Institute's model norms. This proposal encapsulates the essence of the Norwegian rules (and to a certain extent the Scandinavian "common core") in five articles spanning two pages, serving as an eloquent executive summary of the thesis and its main findings. This could be a useful tool for practitioners and business interests in developing more consistent policies and thus reducing litigation. Another more general ambition is that the thesis can provide a theoretical and conceptual platform for further legal research and future decisions by our Supreme Court on the subjects of restitution and unjustified enrichment.
Main research findings
The thesis establishes sufficient grounds to restructure the Norwegian rules of condictio indebiti from a legal standard in Roscoe Pound's sense ("discretionary anti-rule") to a framework of structurally coherent rules. A significant finding is that the legal sources support a main rule of restitution for the claimant when there is no legal basis for the payment, combined with an exception favouring the recipient (defendant) in good faith who has changed his position. The main rule of restitution consists of legal requisites, while the exception involves a broader and more equitable assessment of various criteria found in Supreme Court jurisprudence.
The main rule of restitution.
The restitutionary main rule comprises three legal requisites:
• A transfer of economic value must have been received.
• The transfer must have been received without sufficient and corresponding legal basis as against the claimant.
• The transfer must have been made by the claimant without knowledge of the recipient's lack of basis.
The payers mistake and possible knowledge of the recipient’s unjustified retention is thus a negative requisite for restitution, and if the claimant consented freely and without error to the transfer despite this knowledge, this action itself constitutes sufficient legal basis for the payment. A lack of objective justification can thus be remedied by subjective grounds. The thesis has also subjected the requisites to exhaustive interpretations to map their legal content, making some new findings as well.
The exception favouring the recipient
The rule of exception is a restructured and modified version of the current "discretionary anti-rule", that achieves greater stringency due to the discovery of a threefold structure based on the criteria’s weight – and also the assessment’s function as an exception to the main rule which gives it a clearer direction.
The new structure consists of a legal requisite (the recipient’s good faith), essential criteria that must be considered (e.g., the time lapsed, and the recipient’s change of position), and other criteria that can be taken into consideration (for example if one of the parties is a professional, if undue pressure was applied, etc.).
The topic of this broad, but firmer, assessment, is to decide if the main rule of restitution will be inequitable to the recipient in good faith who has changed his position above a certain threshold, thus making the restitution inequitable. The thesis has also subjected all the different criteria to exhaustive interpretations to map their legal content, making some new findings as well.
Other findings of interest
Is the Norwegian rule grounded on the principle of unjustified enrichment?
A couple of the other findings will briefly be mentioned. On of them is that the principle of unjustified enrichment de lege lata does not constitute the normative foundation and theoretical framework for the Norwegian rules of condictio indebiti. Nevertheless, new developments in literature, laws on tangential fields, and Supreme Court jurisprudence in recent decades suggest that valid arguments for a normative change can be put forward de sententia ferenda.
Change of position – or a new rule as a defence for the recipient (defendant)?
Norwegian law has a principle of calculating, and sometimes reducing, the amount to be restituted that is somewhat similar to the defence of "change of position" in common law or the defence of "disenrichment" in DCFR book VII chapter 6. The recipient (defendant) can apply the defence to avoid full restitution, e.g. the amount he originally received. A finding here is that Norwegian law on various important points has misinterpreted these principles. There are strong arguments to be put forward de lege ferenda to change these principles of defence to a similar assessment, but that is instead based on an analogy from art. 5-2 in Norwegian tort legislation (the damage compensation act from 1969) – which is a flexible rule giving grounds to reduce the amount if full restitution has inequitable effects on the recipient’s economy.