Change of position as a defence in unjust(ified) enrichment: Slovenian law in a comparative perspective

Abstract

If one person is enriched at the expense of another and there is no legal ground for retaining this enrichment, the law imposes an obligation of restitution upon the unjustly enriched recipient, which is subject to various defences. One of them is the defence that the defendant is no longer enriched (change of position). The Slovenian Code of Obligations does not contain an express general defence of change of position. However, there is a special provision, which allows a bona fide recipient of compensation for personal injury to rely on disenrichment if it subsequently turns out that the compensation was without valid legal basis. The paper examines whether disenrichment is inherent to the law of unjustified enrichment as a way of measuring liability, and consequently should the change of position defence be generally recognised, even though there is no provision allowing it in the Code or settled case law on this matter.