Aspects of the historical course of the prohibition of unjustified enrichment in Brazilian law

subsidiarity as a (supposedly) differential attribute of the institute

Abstract

The central scope of the present study is to investigate the origin of the subsidiarity rule of the unjustified enrichment action (attribute that is currently inscribed in article 886 of the Brazilian Civil Code). To this central objective is associated the purpose of investigating the origin of the usual understanding that subsidiarity would constitute a striking and essential feature of the entire institute of the prohibition of unjustified enrichment. Imbued with such purposes, the article undertakes a critical analysis of the historical course of unjustified enrichment in Brazilian law, from the examination of the 1916 and 2002 Civil Codes. Such an investigation of the institute's historical course in Brazilian experience leads to the conclusion that whereas the applicant’s statement of the subsidiarity rule prohibiting unjustified enrichment suffers, in its origin, from the importation, into the discipline of a positive institute, of the attributes that are traditionally associated with the category of general principles of law. At the end of its course, the study seeks to highlight the relevance of the historical analysis for providing subsidies for the necessary renewal of the study of the restitutionary phenomenon in Brazilian law.