On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(20)
v). Having no cause in law:
It’s absence of cause in law that the person who takes delivery of goods which should belong to the holder of original B/L.
It also forms the concurrent of the claim of undue enrichment and real right for the holder of B/L. But different from the concurrent of the tort and contract action in which the obligee can choose to exercise, there are two doctrines in the theory of civil law about the validity of the concurrent. The first one is the doctrine “priority of effect of rights over things”. It maintains that the claim of rights over things should be applied preterentially, while the exercising of the claim of undue enrichment is the supplementary. The other is the doctrine “independence of claim of undue enrichment”. It maintains that the two claim are reciprocal independent, when they’re co-existence on the same subject-matter, the owner of goods can claim to the person who is unauthorized possession or encroaching on the goods for restitution according to the claim of right over things. Meanwhile, he can also claim to the person who is unauthorized for recovery of possession according to the claim of undue enrichment, because possession is also a kind of benefit[34]. The doctrine of supplementary is advocated by early scholarship of Germany and Switzerland, while the scholarships during the past few years are inclined to the doctrine of independence.
总共33页
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