Last week, on March 9, Ivo Opstelten, the Minister of Security and Justice, and Fred Teeven, his State Secretary, felt obliged to step down amidst growing pressure from members of parliament over a deal the aforementioned Teeven cut when he worked as a chief public prosecutor. As is by now well known, as part of this deal, a payment of 4.7 million guilders to the convicted drugs offender Cees H. was agreed upon. When this matter was discussed last year, the Minister informed parliament that the details of the payment were lost. However, when these details were recently unearthed by a news organization the justice department acknowledged that a record of the transaction existed.
For the office holders involved it seems things could scarcely have been worse. But this is untrue. Though it may seem far-fetched, a situation could have occurred in which Cees H., providing proof of the prosecutor’s deal, had claimed to have never been paid. In this case, the justice department, unable to produce evidence of the prior payment, might have been induced to make a second payment of 4.7 million to the same recipient. When the receipt was eventually unearthed the question would have arisen as to whether the department could reclaim this second payment as being undue, since it was made in fulfilment of an obligation which no longer existed.
We now arrive at a point of law which has been vigorously contested since Roman law and which the eminent jurist Reinhard Zimmermann regards as ‘the single most disputed area of the Roman law of unjustified enrichment’. At present, the question is whether a person who made an undue payment has carried out this action under the influence of the mistaken belief that he was bound to do so. Is this fact relevant when an action to reclaim the undue payment is brought? Put differently, the question is whether or not the mistake of the person who rendered a performance (the erroneous belief that he was obliged to make the payment) is a requirement which has to be fulfilled for his action (to obtain a refund) to be successful.
If error is indeed required, it would be nearly impossible for the justice department to reclaim the second payment, especially since it is hard to image that the initial payment of 4.7 million had gone completely unnoticed. On the other hand, if a mistake is not required, the department can simply point to the fact that this performance was not owed.
In Roman law, it is clear that mistake (error) was an essential prerequisite for the action of reclaiming an undue payment (the condictio indebiti, see Digest 12,1,1). If payment had been made with full knowledge of the undue character of the transaction, the payment was regarded as a donation, and could not be reclaimed.
As the recipient could expect to keep what he had been given, he was regarded as deserving more protection than the donor who changed his mind and argued he had not been obliged to render performance. Still, discussions existed with regard to the burden of proof of this element of error (should the plaintiff provide proof of his error, or can it be presumed that he erred in the absence of rebuttal by the defendant?), and with regard to the question of whether a plaintiff’s error iuris (an error as to the law, as apposed to an error facti, as to the facts) should be excusable.
Since this weblog has to be limited in size, a salto mortale shall be made to the present day. The error-requirement survives currently in a large number of jurisdictions, amongst others Germany, Switzerland, Egypt and Japan.
Not so in the Netherlands. In the explanatory remarks on the current Dutch civil code (1992) the absence of this requirement is merely stated, thus endorsing the prevailing view under the regime of the old civil code (1838) with regard to the provision on undue payment (onverschuldigde betaling). This position was only arrived at when the Supreme Court opted against the error requirement and brought a debate between the views of Opzoomer and Diephuis (whose opinions were frequently at odds) to a close.
Opzoomer (1821-1892) had forcefully argued for the error requirement (dwaling), stating as his most important argument the fact that this requirement was uncontested in Roman law, and that this had never been doubted since.
His contemporary Diephuis (1817-1892) however, in one of the most inspired parts of his thirteen-tome commentary on the Dutch civil law, states that he cannot possibly reconcile himself with the error-requirement. With regard to Opzoomer’s argument that the position of Roman law should be conclusive, Diephuis subtly points out that Roman law has been abrogated in the Netherlands since 1809 (along with the enactment of the Wetboek Napoleon, Ingerigt voor het Koningrijk Holland), and was in 1829 considered to have still been abrogated.
But more importantly, Diephuis (persuasively) cites a number of examples justifying his case, each example ending with the exclamation ‘is dat schenking?’ (‘is this a donation?’). If a person knows that he has paid before, but cannot produce a receipt (because he never received one, or has lost it), and is induced to make a second payment, this second payment should not be regarded as a donation, but should be the object of a claim based on undue payment.
The Supreme Court was (in 1917) persuaded by Diephuis’s side of the debate; as a consequence, error is not a prerequisite of the claim in undue payment. Reclaiming a second payment that has been made with knowledge of its undue character, is possible if one later obtains proof of the previous payment.
In short, keeping track of your receipts is never a bad idea, but if you lose them, you would be advised to do so in the Netherlands (although you might lose your office in the process as well).