1. The case of the planted trees
At some point in the early third century of the Common Era, a man in Babylonia went into another’s field and, without the owner’s permission, planted trees there. The question then arose: under Jewish law was the owner liable for this unsolicited improvement to his property? The case was brought before Rav, the pre-eminent Jewish jurist of the time. The Talmud gives the following account of the proceedings:1
A man came before Rav. Rav said to the owner of the field, ‘Go and make an assessment for him.’ The owner said, ‘I do not want the trees.’ Rav said, ‘Go and make an assessment for him, and he shall have the lower hand’ [that is, on the standard interpretation, the improver shall be entitled to the lesser of his expenses and what the owner would pay to have the trees planted]. The owner said, ‘I do not want the trees.’ Subsequently, Rav saw that the owner had built a fence around the field and was guarding it. Rav said to the owner, ‘You have revealed your view that you are pleased with the trees. Go and make an assessment for him, and he shall have the upper hand.’
This ancient incident brings together features familiar to modern students of the law of restitution. On one side is the improver, who claims remuneration for the benefit, albeit unrequested, of the planted trees. On the other side is the owner, who (anticipating the modern notion of subjective devaluation)2 repeatedly denies that this is a benefit that he wants. Rav, adjudicating the dispute, indicates the measure of the owner’s payment with various formulations, but makes a decisive ruling only when the owner’s behavior shows that he was satisfied with the trees after all. Pervading the whole account is familiar tension between the owner’s freedom to determine the use of his own property and the prevention of enrichment at the improver’s expense.
Rav’s treatment of the planting of these trees represents one of the fundamental building blocks of the Jewish law’s jurisprudence about unrequested improvements. This jurisprudence is extraordinarily complex and sophisticated. The dictum about the common law—that it has been “fined and refined by an infinite number of Grave and Learned Men”3—is even more apposite to the development of Jewish law. But because its long history has been accompanied by wide geographical dispersion and a largely decentralized structure of legal authority, legal doctrine has often been fluid and evolving within the stable framework provided by the Talmud, the system’s basic text. Accordingly, although the jurisprudence of unrequested improvements originates in the brief Talmudic segment that centers on Rav’s case, centuries of commentaries, responsa, and codifications have produced varied understandings of the legal elements of the problem and different suggestions of how those elements are to be combined. To examine, or even refer to, all the possibilities is beyond the scope of this chapter. I hope, instead, to highlight issues that run parallel to those found in the common law.
This chapter thus contributes to the burgeoning comparative literature that the revival of restitution in the common law world has stimulated.4 From the standpoint of the common law, this literature has an obvious attraction. Although the modern common law of restitution has antecedents that stretch back several centuries, only within the last decades have scholars and courts made a sustained effort to develop a set of distinct principles of unjust enrichment. Attention to the sophisticated older European traditions about unjust enrichment not only exposes further possibilities of analysis, but also contributes to the intellectual self-consciousness necessary for productive reflection about unjust enrichment as a juridical concept. However, scholars of restitution have had little opportunity to consider Jewish law, as is understandable given its obscurity and inaccessibility. Nonetheless, as the episode involving Rav indicates, issues of unjust enrichment have engaged the attention of the leading figures of the Jewish legal tradition for almost two millennia. This makes Jewish law the locus for the world’s oldest uninterrupted and continuing discussion of unjust enrichment.
Although the Jewish law of unrequested improvements developed without apparent attention to Aristotle’s conception of corrective justice, my exposition of Rav’s case is nonetheless informed by that conception.5 Corrective justice, with its insistence on the correlative structure of the private law relationship, is a theoretical idea for understanding the fairness and coherence of private law. It is not itself a notion explicitly invoked in the formulation of legal doctrine. However, inasmuch as a sophisticated regime of private law—as Jewish law assuredly is—aspires to deal fairly with both parties and to work out coherent doctrine, one should not be surprised if its norms are intelligible in the light of corrective justice.
Corrective justice also serves as a framework for the comparison of legal doctrine across legal systems. Scholars of comparative law are divided about whether to emphasize the commonalities or the differences between legal systems.6 Corrective justice accommodates both commonality and difference. At the level of commonality it directs attention to the correlative structure of the parties’ relationship, and thus to the most pervasive characteristic of legal doctrine insofar as it is fair and coherent. At the level of difference, it acknowledges the diversity of the ways in which legal systems construct and actualize correlatively structured relationships.7 As a theoretical idea, corrective justice orients us within the conceptual space of fair and coherent legal doctrine. It thereby alerts us to considerations that are inappropriate to a private law relationship because they are so structured that they could not possibly come within that space. However, corrective justice does not usurp the role of specific legal systems in working out the doctrines that are intelligible in its light. This allows the comparative examination of the different ways in which different legal systems formulate the doctrinal requirements of a common conceptual framework.
My especial focus is on the interplay between the improver’s claim to remuneration for the benefit bestowed and the owner’s freedom from having to pay for an unwanted improvement. From the standpoint of the idea of unjust enrichment, this interplay raises the issue of whether the owner’s enrichment at the improver’s expense is unjust. Within the framework of corrective justice, which conceives of unjust enrichment as involving a transfer of value that the transferee is obligated to restore, the lack of justice in the enrichment refers not to injustice at large but to injustice regarding the transfer of value.8 Inasmuch as value is transferred only if the transferor has given something for nothing, the absence of justice in transfer revolves around how the parties’ wills are related to each other through the gratuitousness of the transfer. Accordingly, in determining whether an enrichment was unjust, two issues regarding the justice of the transfer arise. The first is whether the transferor intended to give the value gratuitously. If the transferor had donative intent, justice in transfer is achieved. The transferred value cannot be recalled by claiming that the enrichment was unjust, because there is no injustice in the transferee’s retention of what the transferor willingly gave him. If, however, the transferor did not intend to give the value gratuitously, a second issue arises: did the transferee accept the value as non-gratuitously given? An affirmative answer triggers the obligation to restore the value, because the transferee cannot retain for nothing a benefit that he accepted as non-gratuitously given. Thus, the enquiry into whether the enrichment was unjust situates the parties correlatively as transferor and transferee of value that was not gratuitously transferred.
The transferor’s lack of donative intent and the transferee’s acceptance are structural components of liability for unjust enrichment within the corrective justice framework. As a functioning system, however, the law of unjust enrichment must render this framework specific and concrete. From what is the transferor’s donative intent to be inferred? Under what circumstances can acceptance of the benefit be imputed to the transferee? Different systems of law address the issues raised by these questions in different ways. The consequence is that Jewish law and the common law may differ in the way each handles unrequested improvements and yet, despite the absence of historical connection between the two systems, may implicitly share a framework of thought that conforms to corrective justice. Such commonality would merely reflect the aspiration of each to fairness and coherence in their respective constructions of their regimes of private law.
In its treatment of unrequested improvements Jewish law pays considerable attention to the aspect of acceptance. Indeed, as I hope to show, the history of Jewish law in this context is the history of the shifting conceptions of acceptance. Speaking broadly and ignoring the details for the moment, one can say that the treatment of the issue in Jewish law will seem familiar to someone conversant with the common law. The common law employs two notions of acceptance. Acceptance of a benefit can be imputed to the recipient either because the recipient has acted in a way that reveals an acceptance (for example, by acquiescence) or because, given the recipient’s activities and projects, he has no reason not to accept it (cases of “incontrovertible benefit”). Parallels to both notions of acceptance appear in Jewish law. In the incident of the planted trees, for instance, the fencing and guarding were taken by Rav to be acts that revealed an acceptance even though the owner denied that he wanted the trees. More importantly, Jewish law crafted different conceptions of incontrovertible benefit, based on a working and reworking of the Talmudic material. These various conceptions are the subject of this chapter.
This chapter, accordingly, proceeds in the following stages. Section 2 explains the different measures of remuneration (“having the upper hand” and “having the lower hand”) to which, in the opinion of subsequent commentators, the Talmudic account of Rav’s case refers. These different measures are tied to the suitability of the property to the activity of the improver. As section 3 then outlines, the notion of suitability was the basis of the earliest conception in Jewish law of what we would term “incontrovertible benefit.” The basic idea was that the owner of a field that was suitable for planting trees could be compelled to pay for them on the higher measure because the owner would not be averse to having the field brought to its optimal use. This idea depended on interpreting Rav’s case as involving a field that was not suitable for trees. Section 4 outlines the collapse of this interpretation of Rav’s case in favor of the view that, regardless of whether the field was or was not suitable for planting trees, owners retained their liberty to reject the improvement. Nonetheless, simultaneous with this collapse, a different basis for incontrovertible benefit arose, from which modern commentators derived two different conceptions of the conditions under which the owner could not reject an improvement. Section 5 discusses these different conceptions. Finally, section 6 offers some brief concluding reflections.
2. The measures of remuneration
Rav’s case appears in a section of the Talmud, extending less than twenty lines, that deals with unrequested improvements. The section discusses two situations in which the improver acts for the owner’s benefit but without the owner’s permission. In the first, the improver plants trees in another’s field, and the Talmud discusses the quantum that the owner is to pay for this improvement. In the second, the improver rebuilds another’s dilapidated structure, and the Talmud discusses the improver’s right to remove his materials. Rav’s case is the final element in the discussion of the first of these situations.
The Talmud’s conclusion in the first situation is that the amount to be paid by the owner depends on whether the field was “suitable for the planting of trees.”9 Where trees are a more profitable use of the field than the crops that otherwise would be there, the improver is entitled to a higher level of remuneration. Rav formulated the different levels of remuneration in terms of whether the improver had “the upper hand” or “the lower hand.”10 What precisely he meant by this was a matter of dispute among subsequent commentators.
By the Middle Ages the most accepted view was as follows.11 The practice was that persons who were employed by others to plant on their behalf were paid a proportion, determined by local custom, of the appreciation in the yield produced by their efforts. The unrequested improver, of course, had not been employed by the owner. Nonetheless, if the field was suitable for trees, the improver got either his expenses or the customary share of the yield, whichever was greater. By being entitled to the more advantageous of these alternative measures of remuneration, the improver “had the upper hand.”
The reason for this treatment of a field that was suitable for trees is that the planting of trees brought the field to its optimal use. Accordingly, the improver did what the owner would have done in any case, and therefore the owner can be treated as if he wanted the trees planted. To arrive at the improver’s remuneration, “one assesses how much a man would give to have this field planted.”12 Such an owner would have been willing to allot to the improver a share of the yield in accordance with the usual practice of the locality. Moreover, if the planter’s expenditures exceeded his prospective share of the yield, the owner would have at least reimbursed those expenditures; otherwise the trees would not have been planted, because the improver would not have agreed to do it at a loss.13 Therefore, once one treats the owner as desiring the improvement, the improver becomes entitled to the expenses or the planter’s customary share of the appreciation, whichever is the greater.
If the field is not suitable for planting trees, the situation is different. Although the owner has benefited, the trees do not represent the optimal use of the field, so that the reason for treating the owner as wanting the improvement falls away. All that remains is the benefit itself, which is valued as the lesser of the cost of creating it and the appreciation that accrues from it. On the one hand, the value transferred from improver to owner is the value of the efforts expended in improving the property. On the other hand, the improver’s expenditure does not enrich the owner beyond the appreciation in the yield; indeed, if the improver could charge the owner for expenses that exceed the value that his efforts added to the yield, he would be impoverishing rather than enriching the owner. Accordingly, the increase in the yield’s value functions as a ceiling in the calculation of the quantum of the benefit received by the owner from the improver. Hence, the classic explanation of what it means for the improver to have the lower hand is that “if the appreciation is greater than the expenditure, he gets the expenditure, and if the expenditure is greater than the appreciation he gets no more than the appreciation.”14
For improvements to non-agricultural properties such as buildings, where the notion of a yield was not relevant, the notional comparison of expenditure and appreciation worked in a slightly different way. Having the lower hand gave the improver the lesser of the expenditure and the increased value of the property.15 However, the improver who had the upper hand was entitled to what the owner would have paid to have the work done, even if this exceeded the increase in the value of the property. The difference between the lower and the upper hand is that in the former the appreciation set the upper limit of the improver’s remuneration, whereas in the latter improvers were entitled to the cost of the improvement without limit.16
Thus, the accepted view of the contrast between the improver’s having the lower hand and having the upper hand involves a difference in the principle on which the remuneration is assessed. When the improver has the upper hand, the assessment is quasi-contractual. Because the improvement moves the property to its optimal use and is thereby equated to one that the owner desires, the assessment is based on a reconstruction of what the owner would have agreed to pay an improver to achieve the desired improvement. In contrast, when the improver has the lower hand, the assessment is restitutionary. Because the planting of trees benefits the owner without moving the property to its optimal use, the confidence in the owner’s desire for the improvement is absent. What matters then is not what the owner would have agreed to pay, but rather the value of the benefit that was transferred to the owner through the improver’s efforts.
Some commentators in the Middle Ages found the accepted interpretation of the upper hand implausible regardless of whether the expenditure or the appreciation was greater.17 If the share of the appreciation was greater than the improver’s expenses, the accepted view, by giving him the customary share of the appreciation, treated him like a person who had been hired to plant the trees. But this, so the objection went, treated a non-consensual transaction as if it were a consensual one. Moreover, giving the improver more than he expended meant that what the improver received exceeded the benefit that was attributable to him.18 On the other hand, awarding the improver his expenses, no matter how large they were, even if those expenses exceeded the appreciation in the yield’s value, would also entail having the owner pay for more than he benefited. The most that could be awarded to the improver is the expenses up to the value of the appreciation, since anything above that is a loss that the improver inflicted on himself.19 The accepted view of the upper hand, in other words, remunerated the improver on a contractual measure despite the nonexistence of a contract, while failing properly to measure the benefit that was the basis of the improver’s claim.
Instead these commentators suggested a different view of the contrast between having the upper and the lower hand. What mattered for them was not the comparison of expenditure and appreciation, but different ways of measuring the expenditure:
The meaning of ‘he has the upper hand’ is as in the superior kind of hiring, when a man says to his fellow, ‘Build on this land of mine, or plant this field of mine, so that I myself won’t have to bother with it,’ for this certainly is of conspicuous benefit to him. And the meaning of ‘he has the lower hand’ is as with the inferior kind of hiring, when the inferior workers treat it cheaply.20
The owner for whose field the planting of trees is the optimal use can be presumed to want the work done and to be willing to hire a more able contractor and pay him at a high rate to have the planting properly executed. The owner benefits by being spared the trouble of attending to this desired project himself; in particular he does not have to bother with bringing in various workmen to attend to the various stages of the work.21 In contrast, the owner for whose field the planting of trees is not optimal would be satisfied to have it done at the minimal cost using the cheapest labor. The benefit consists simply in having someone put trees where there were none before. Thus, according to this view the benefit received by the owner varies with the kind of field he has. With respect to both kinds of field, the analysis is oriented to the enrichment that accrued to the owner, and the amount of the remuneration is conceptualized in what we would consider to be restitutionary terms.
We can now return to Rav’s case and set it into its Talmudic context. The Talmud introduces the case to show Rav’s view of the remuneration to be paid to the improver. Immediately before the Talmud’s account of the incident, the Talmud mentions an apparent dispute between Rav and his contemporary Samuel with respect to the unsolicited planting of trees. Rav had said that the planter has the lower hand, whereas Samuel had said that the planter receives what the owner would have been willing to pay to have the field planted. The Talmud then cites an opinion that these sages do not disagree; their stated views simply apply to different kinds of fields: Rav’s statement applies to a field not suitable for planting, whereas Samuel’s statement applies to a field suitable for planting. That Rav does not disagree with Samuel is inferred from the incident that came before him, where Rav envisages two measures of remuneration, the lower hand that the Talmud had previously attributed to him and the upper hand that is equivalent to the view attributed to Samuel. In dealing with the tree-planting, Rav makes three interventions. He first orders remuneration but without specifying its measure, to which the owner replies that he does not want the improvement. He then orders remuneration with the improver having the lower hand, which is the measure appropriate to a field that is not suitable for planting. The owner then repeats his insistence that he does not want the improvement. Finally, when Rav notices that the owner, by fencing and guarding the trees, has demonstrated that he wants them despite his earlier denials, Rav tells him to remunerate the improver with the improver having the upper hand— that is, at the higher level appropriate to a field suitable for planting.
3. Incontrovertible benefit
The special significance of a field that is suitable for planting is reminiscent of the common law’s notion of an incontrovertible benefit. An incontrovertible benefit is one that would not have been declined even if the owner would have had the opportunity to choose.22 For the determination of whether an improvement is incontrovertible, the nature of the improved property and the necessary or optimal use of it are relevant.23 Jewish law takes the suitability of a field for the planting of trees as paradigmatic of optimal use; what is necessary to produce this optimal use then becomes the measure of the improver’s remuneration, as the party who “has the upper hand.”