INFLATION IN UNJUSTIFIED ENRICHMENT CLAIMS: REFLECTIONS FROM ABROAD ON THE NEW BRAZILIAN CIVIL CODE

Aimite Jorge, University of Cape Town

Abstract

Inflation can be one of the risks assumed by the parties to a contract. But contractual terms may provide for monetary corrections (adjustments) to offset that risk in cases of regular inflation because the parties are in a bilateral agreement. The same may not hold true however for claims arising in unjustified enrichment because the parties are not necessarily in a bilateral agreement. They may find themselves in the position of two innocents because the events that brought about the decline of purchasing power of the currency were unconnected to them. In such cases, the change-of-position (loss of enrichment) defense might be available to the defendant as a matter of justice.