DOES THE RETURN OF MONEY DEPOSITED BY MISTAKE REQUIRE THE PAYMENT OF A REWARD (ACHÁDEGO)? THE RELATIONSHIP BETWEEN UNJUST ENRICHMENT BY PERFORMANCE AND ARTICLE 1.234 OF THE CIVIL CODE

Abstract

This paper analyzes, based on a recent concrete case widely reported by the media, the relationship between the Right to Unjust Enrichment by Provision and the right to reward (achadego) for the discovery and return of someone else's lost property (art. 1.234 of the Civil Code). It will be demonstrated that the restitutory claim, as a result of objective good faith, does not give rise to the right of reward for the finding of someone else's thing, an institute applicable to tangible movable assets (and not to intangible assets, such as the right of credit) and which rewards the discoverer for having found, by proactivity or luck, the lost object. On the other hand, in the case of unjust enrichment by a service resulting from an erroneous bank transfer, there is no commissive attitude (even if it is the one resulting from the luck of fortuitously coming across something lost on the street, for example), since the only benefit that effectively exists in these hypotheses is the erroneous transfer of the solvens (the one who became impoverished) to the accipens (the one who unjustifiably became rich),  which generates per se a restitutory claim of the former against the latter and no right to find.