Obligation, Action for unjustified enrichment, subsidiarity prescribed by art. 2042 of the Italian Civil Code, Civil Cassation, Third Section, Interlocutory Ordinance no. 5222 dated 02/20/2023

Residuality – Concept – Absence of actions deriving from the contract or provided for by law – Consequence – Admissibility of the request for enrichment in the event of an action hypothetically available on the basis of general clauses.

With regard to the action of unjustified enrichment, the Third Civil Section referred to the First President, for possible assignment to the United Sections, the question concerning the interpretation of the subsidiarity rule prescribed by art. 2042 of the civil code and, in particular, about the correctness of the jurisprudential orientation that identifies this assumption of the action pursuant to art. 2041 of the civil code in the absence of a typical action – understood as the absence of an action deriving from a contract or foreseen by law with reference to a specific case, not as a lack of a procedural initiative even if only hypothetically feasible – and which, consequently, considers the request for unjustified enrichment admissible even when the action theoretically due to the impoverished person is provided for by general clauses (as in the case of compensation for pre-contractual liability).

Source Supreme Court of Cassation