Absence of a Legitimate Cause in the Action for Unjust Enrichment An Analytical and Comparative Study in Light of Article 182 of the Libyan Civil Code

Abstract

This study examines the third element of the action for unjust enrichment under the Libyan Civil Code: the absence of a legitimate cause. This element separates property that must return to its owner from property that may remain with the person who received it. Article 182 requires enrichment “without a legitimate cause” but does not define the phrase, and three readings have competed to fill the gap: a moral reading, an economic reading, and a legal reading. The study follows an analytical and comparative method. It sets out these readings, tests them against comparable Arab civil codes and leading treatises, and then turns to the sources that can justify enrichment (a legal act or a provision of law), to the burden of proving the absence of a cause, and to the consequences of that proof. It also applies the preferred criterion to a Libyan-specific example: interest-bearing transactions under Laws No. 1 of 2013 and No. 7 of 2015. The study concludes that a legitimate cause is the legal fact (a contract, a unilateral act, or a rule of law) that gives the enriched party a right to retain the benefit received, provided that the right covers a net enrichment; that the action is a principal rather than a subsidiary one; and that the burden of proof lies on the claimant in principle but may be apportioned by the court. It recommends that courts state the cause on which they accept or reject a claim, that the Supreme Court’s relevant case law be collected, and that the legislator clarify the meaning of “cause” when Article 182 is next amended.