CHANGE OF POSITION AS A DEFENCE IN UNJUST(IFIED) ENRICHMENT: SLOVENIAN LAW IN A COMPARATIVE PERSPECTIVE**

If one person is enriched at the expense of another and there is no legal ground for retaining this enrichment, the law imposes an obligation of restitution upon the unjustly enriched recipient, which is subject to various defences. One of them is the defence that the defendant is no longer enriched (change of position). The Slovenian Code of Obligations does not contain an express general defence of change of position. However, there is a special provision, which allows a bona fide recipient of compensation for personal injury to rely on disenrichment if it subsequently turns out that the compensation was without valid legal basis. The paper examines whether disenrichment is inherent to the law of unjustified enrichment as a way of measuring liability, and consequently should the change of position defence be generally recognised, even though there is no provision allowing it in the Code or settled case law on this matter.


INTRODUCTION
The law of unjust(ified) enrichment creates liability in cases when one person is enriched at the expense of another and there is no legal  Teaching and Research Assistant, Chair of Civil Law, Faculty of Law, University of Ljubljana, Slovenia, karmen.lutman@pf.uni-lj.si.
 A preliminary version of this article was presented at the Inaugural Younger Scholars' Forum during the 2018 International Academy of Comparative Law's 20th International Congress in Fukuoka, Japan.
ground for retaining this enrichment.It is a separate source of obligation, distinguishable from contract and tort, and as such recognised in most modern legal systems.In general, for cause of action the claimant must prove that the defendant has been enriched at the claimant's expense and that this enrichment was unjust(ified).In defining enrichment as unjust(ified), two approaches have been adopted in comparative perspective. 1In the first (civilian) approach, enrichment is unjustified if it lacks a valid legal basis, e.g. a contract or a statute (the "absence of basis" approach).For example, if a sum of money was paid in a mistaken belief that it was owed, it should be returned if no debt had existed or if it had already been paid off.As there was no legal ground for the payment, the enrichment is considered to be unjustified.In the second (common law) approach, the claimant must prove a positive reason to render the enrichment unjust, e.g. a mistake, duress or undue influence (the "unjust factors" approach).Such reasons are inherent to the law of unjust enrichment and were developed through case law. 2 According to this view, in the situation illustrated above, the enrichment is considered to be unjust due to the fact that money was paid by mistake, 3 which is one of the unjust factors.Since this paper deals predominantly with civil law, the term "unjustified" enrichment will be used hereinafter as it better reflects the "absence of basis" approach. 4he law of unjustified enrichment imposes an obligation of restitution upon the unjustly enriched recipient and is subject to various defences.Among them is the defence that the defendant is no longer enriched (the change of position or disenrichment defence).It aims to exclude the obligation to make restitution to the extent that the recipient has ceased to be enriched.Limiting the defendant's liability to the actual enrichment at the time of litis pendentia is considered among German scholars to be a characteristic "weakness" of unjustified enrichment claims. 5istorically, there was no general rule limiting the defendant's liability to the actual enrichment at the time of litis pendentia.In Roman law, the recipient, liable under condictio, was obliged to return the object received or to restore its value, notwithstanding the fact they might have ceased to be enriched. 6There were, however, certain exceptions to this rule.If the defendant received an individual object (species) that was subsequently destroyed, they were, as a rule, released from their obligation as it had become objectively impossible to return it. 7Two further instances of such weak liability were the liability of a pupil who concluded a contract without the consent of the tutor and the liability of spouses for the restitution of gifts they had given to each other.In both cases, the restitution was limited to the amount of the benefit that remained at the time of litis contestatio. 8Furthermore, the value of the remaining enrichment was a regular measure of liability under action de in rem verso, which was limited to cases of third-party enrichments in Rome.However, its scope was subsequently broadened and in the 18 th century it came to be used as a general enrichment action. 9Medieval scholasticism and natural law doctrine favoured limiting the defendant's enrichment liability by taking into account subsequent disenrichment. 10Yet it was the Pandectists of the 19 th century who established disenrichment (Ger."Bereicherungswegfall") as a general measure of enrichment liability. 11ollowing the pandectist doctrine, a special provision on loss of enrichment (Ger.Wegfall der Bereicherung) was introduced into the German Civil Code in 1900, which provides that restitution is not owed "to the extent that the recipient is no longer enriched."12A similar provision can be found in the Swiss Code of Obligations13 and should in essence remain unchanged also after the proposed reform of the Code (OR 2020). 14The change of position defence is also recognised in American law15 and English law. 16In English law, the defence was recognised in Lipkin Gorman17 and since then case law has carved out its scope and key features.However, comparative analyses show that there is no consensus within the European legal systems on adopting a general principle of disenrichment. 18Nonetheless, model rules of European private law, such as the Draft Common Frame of Reference (DCFR) and Principles of European Law of Unjustified Enrichment (PEL Unj.Enr.), recommend implementing disenrichment as a general defence in national legislations. 19he Slovenian Code of Obligations20 does not contain an express general defence for change of position.However, there is a special provision that allows a bona fide recipient of compensation for personal injury to rely on disenrichment should it subsequently turns out that the compensation was without valid legal basis.Given the trends in European private law, the question inevitably arises whether disenrichment is inherent to the law of unjustified enrichment as a method of measuring liability and whether the change of position defence should therefore be generally recognised, even though there is no provision allowing for it in either the code or in settled case law related to this matter.
This paper deals with disenrichment as a way of measuring liability.By analysing its philosophy and examining select European legal systems, it seeks to determine whether a doctrine of disenrichment should be generally applied in Slovenian law, and if so, whether as a rule or rather as a defence.The Slovenian Code of Obligations is almost entirely based on the former Yugoslav Act on Obligations21 (1978).The situation is similar in Croatia and Macedonia, while the Yugoslav Act is still in force in Serbia and in Bosnia and Herzegovina.Therefore, this issue might be relevant not only for Slovenian law but also for the laws of some other countries in Southeast Europe.

PHILOSOPHY OF THE CHANGE OF POSITION DEFENCE AND ITS BASIC FEATURES
Today, it is widely accepted that Aristotle's corrective justice is the philosophical foundation of the law of unjust(ified) enrichment. 22It aims to correct unjustified transfers of value between two parties by requiring the restoration of enrichment.Restitution as a response23 to an act of unjustified enrichment is "a tool of corrective justice"24 that strives to bring the parties back to their pre-transfer positions (status quo ante).Pomponius' statement should also be referred to when considering the philosophical foundations of unjustified enrichment, as it asserts that it is in accordance with the law of nature that no one should be enriched to the detriment of another Iure naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem. 25Although it was originally not meant to serve as a rule of positive law, it has with some modifications become a general enrichment clause in several countries. 26ince the doctrine of corrective justice promotes equality between private individuals and emphasizes that the relationship between them should be based on fundamental respect for each other's rights,27 one of the main principles of restitution for unjustified enrichment is that it should never make defendants worse off. 28This aim is achieved by allowing On the other hand, after making restitution, the defendant should also neither profit at the expense of the claimant nor be in a better position than they would have been in had there been no unjustified transfer of value in the first place.In German law, both aspects the defendant to rely on the change of position defence.The underlying philosophy of this defence is to prevent the defendant from incurring a loss as a result of being obliged to make restitution.In other words, relying on the disenrichment defence prevents bona fide defendants from "reaching into their own pockets" in order to make restitution, as it has been illustratively described by German scholars. 29Similarly, common law considers change of position to be underpinned by the "no worse off" rationale, according to which defendants should not be unjustifiably left worse off than they were prior to their receipt. 30n line with this rationale, the defence applies to both reliancebased and non-reliance-based changes of position.In common law, this is considered to be a "wide view" of the change of position defence. 31eliance-based change of position refers to subsequent losses that occur due to the fact that the recipient believed they was entitled to the object received and used or disposed of it accordingly, in good faith.On the other hand, non-reliance-based change of position occurs independent of the recipient's reliance on their acquisition, such as when the object is destroyed or stolen.Thus, by using the change of position defence the defendant can shift the loss of enrichment to the claimant.It is therefore the claimant who bears the risk of subsequent changes to the received benefit.Since such a broad interpretation of the change of position defence is disproportionately in favour of the defendant and could threaten a proper balance between the interests of the parties, it should be interpreted restrictively, taking into consideration all the relevant circumstances of the individual case. 32he change of position defence furthermore aims to protect the recipients' reliance on the validity and the finality of their acquisition. 33f they reasonably assumed that the received benefit would remain theirs and took various economic decisions in that belief, their interest are included in the principle of the restoration of corresponding benefits and losses.This is known as the "principle of statics" (Ger.Statikprinzip).See: C. Wendehorst 31 J. Edelman, "Change of position: A defence of unjust enrichment", Boston University Law Review, Vol. 92, 2012, 1014. 32 Which circumstances of the case should be taken into account when striking a fair balance between parties was discussed in detail by Flessner.See: A. Flessner, 108-141.
33 See e.g.P. Birks, 209; R. Zimmermann (1995), 413; C. Wendehorst,  § 818,  paras.34 and 66.  in the security of the receipt deserves protection.As Birks explains, "The defence avoids the need to sterilize funds against the danger of unsuspected unjust enrichment claims." 34It is in line with this rationale that it only offers protection to bona fide recipients, i.e. recipients who did not know and could not have known that they were not entitled to the received benefit.Exempt from protection are mala fide recipients and those who are subject to strict liability due to a filed restitution claim. 35oreover, reliance on the definitiveness of the acquisition of assets may also enjoy the protection of property as enshrined in Article 1 of Protocol No. 1 to the European Convention on Human Rights.According to the settled case law of the European Court of Human Rights, this right applies not only to a person's existing possessions but may also in certain circumstances protect a legitimate expectation of obtaining an asset. 36The issue of limiting the right to restitution in order to protect the recipient's legitimate expectation of the definitiveness of received assets was discussed by the ECtHR in its recent decision in Čakarević v. Croatia. 37 This case concerns the applicant's complaint that she was ordered to return unemployment benefits that she had been receiving due the employment bureau mistakenly renewing her entitlement to benefits.By ordering her to repay unemployment benefits (about 2,600 euros in sixty instalments), the County Court in Rijeka referred to the general rule on unjustified enrichment enshrined in the Croatian Obligations Act. 38The ECtHR noted that Ms. Čakarević had a legitimate expectation of being able to retain the funds received without her entitlement to unemployment benefits being called into question retroactively. 39Namely, she had done nothing to mislead the employment bureau to renew her entitlement to unemployment benefits and was in good faith, whereas it took over three years for the authorities to react to their error.The Court observed that the applicant was unemployed, ill and in a poor financial 34 P. Birks,209. 35   53/1991, 73/1991, 3/1994, 7/1996 and 112/1999, states that: "(1) When a part of the property of one person passes, by any means, into the property of another person, and such a transfer has no basis in a legal transaction or law, the acquirer shall return that property.If this is not possible, the acquirer shall provide compensation for the value of the benefit received.(2) The transfer of property also includes any benefit obtained by someone performing an action.(3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not exist or which subsequently ceased to exist." 39 Para.54 of the Judgement.
situation.She had spent the received money for covering her basic living expenses and had accumulated no savings.The Court noted that in such circumstances paying the debt, even in sixty instalments, would threaten her subsistence. 40Taking into account all circumstances of the case and the fact that the State was fully responsible for the overpayments, while the whole burden of the State's error fell on the applicant, the Court held that ordering her to reimburse the full amount of the overpaid unemployment benefits violated her right to protection of property.
In my view, this decision could be interpreted as acknowledging an individual's right to the change of position defence, provided that they can demonstrate that their changed position is a consequence of their reliance upon the receipt of the benefit and that ordering them to make restitution would violate their conventional rights.However, it should be noted that the ECHR primarily applies to vertical relationships between the state and individuals, the case in question being no exception.In public law, the rules of unjustified enrichment are usually adapted to the particularities of such relationships, 41 since the state and individuals do not "interact with each other as free and equal agents without the law's subordinating either of them to the other," which is one of the key features of corrective justice. 42However, change of position as a defence of private entities against public authorities has also been acknowledged by the CJEU in several cases. 43Similar to the ECtHR in Čakarević v. Croatia, the CJEU considers the defence to be closely connected to arguments based on legal certainty and the rule of law, such as legitimate expectations.Moreover, in Oelmühle Hamburg AG v. Bundesanstalt für Landwirtschaft und Ernährung the CJEU held that "the plea of loss of enrichment" is, in principle, part of Community law. 44As we can see, the change of position defence, as a primarily private legal defence, has been, together with its main features developed in private law, 45 transplanted into public law as a manifestation of the principles of legal certainty and the rule of law.
In private law, disenrichment as a way of measuring liability, regardless of whether it is a rule or a defence, has common features 40  44 Para.31 of the Judgement. 45In Oelmühle Hamburg AG v. Bundesanstalt für Landwirtschaft und Ernährung, the CJEU referred to the foreseeability of the risk and the need for good faith.For a detailed analysis, see: R. Williams, 265-267.from a comparative perspective.In German and Swiss law, where loss of enrichment is explicitly enshrined in the civil codes, the following rules are regarded as generally accepted.Firstly, the received benefit should have been disposed of without consideration (Ger."ersatzloser Wegfall der Bereicherung"), which is not the case if the recipient saved their own assets while using or disposing of the received benefit. 46Thus, a defendant pleading loss of enrichment must not only prove the loss of the received object but also that no benefit in any other form remained in their assets. 47 similar view has been taken in English law, where only detriments that reduce the defendant's overall wealth can be taken into consideration. 48In German law, several presumptions were developed by case law in order to ease the defendant's burden of proof.It is, for instance, presumed that the enrichment has fallen away without consideration if the defendant had no assets whatsoever left at the time when the action was filed. 49The same is presumed if the defendant with a lower or middle income received relatively small overpayments in wage, emolument or maintenance. 50econdly, the defendant may also plead that the received benefit is of no value to them. 51By referring to the subjective value of the received benefit, a defendant will usually succeed in excluding the enrichment claim when the enrichment was imposed on them without their consent (Ger."aufgedrängte Bereicherung") and cannot be returned in kind.Thirdly, by relying on disenrichment the defendant can set off the losses that they suffered due to their faith in the validity and definitiveness of their acquisition and which are sufficiently causally linked to the enriching event. 52Fourthly, the disenrichment defence is only available to bona fide recipients and cannot be pleaded by mala fide recipients and those subject to strict liability. 53For very similar reasons, the change of position defence is also excluded in English law. 54However, relying on disenrichment is, as a rule, excluded in cases of unwinding failed reciprocal contracts, due to the synallagmatic nature of the parties' performances, which is also supposed to find some recognition in the unwinding process. 55A similar view has been taken in English law, where the rescinding party claiming restitution in unjust enrichment should be able to make counter-restitution to the other, otherwise their claim is barred. 56

SLOVENIAN LAW OF UNJUSTIFIED ENRICHMENT IN A NUTSHELL
The law of unjustified enrichment in Slovenia is codified, as it is in many other civil law countries.Its provisions are enshrined in the Code of Obligations (Articles 190-198) and are based on the previous ones of the Yugoslav Act on Obligations.In contrast to the Austrian Civil Code (ABGB), which had been in force in Slovenian territory from 1815 until 1946, and as an informal source of law until 1978 (when the Yugoslav Act was adopted), the Yugoslav Act united all enrichment claims into a separate chapter on unjustified enrichment and subjected them to a general clause.Although some legal scholars opposed the idea of unifying the law of unjustified enrichment, 57 the legislator followed the solution proposed by Mihailo Konstantinović in his draft of the Yugoslav Act on Obligations, 58 which was most likely inspired by Swiss law. 59rovisions on unjustified enrichment as contained in the Slovenian person becomes enriched to the detriment of another without a legal basis, they shall be obliged to return the benefit received if possible, or to repay the value of the benefit achieved." 60However, Slovenian theory follows the pluralistic approach 61 and differs among various enrichment claims, where the main distinction is drawn between performance-based and non-performance-based enrichment claims, a taxonomy established by Walter Wilburg and Ernst von Caemmerer. 62In a comparative perspective, different views may be identified regarding the unity of the law of unjust(ified) enrichment.While some authors believe that unjustified enrichment cases all reflect a single principle that benefits received without a legal basis must be given up, 63 others argue that the unitary unjustified enrichment claims, especially those in the German and Swiss Civil Codes, are based on nineteenth century doctrinal assumptions which have long since been superseded. 64According to observations made by Nils Jansen that "Civilian jurists have begun to realise that the different claims that developed under the umbrella of unjustified enrichment belong to different contexts, and that the codifications' order is no sufficient reason to integrate within a unified institute claims that are of fundamentally divergent legal nature", it could be said that a pluralistic approach is the first step towards recognising the differences between enrichment claims that should, in my opinion, be taken into consideration also when applying the rules of restitution.The Code of Obligations contains a set of restitutionary rules that apply to both performance-based and non-performance-based enrichment claims.The measure of restitution can be summarized as follows: the impoverished party can claim restitution in kind, if this is possible, or otherwise the monetary value of the enrichment. 65There is no provision on loss of enrichment (or the change of position defence, in common law terminology) apart from a special provision on disenrichment that applies to wrongfully paid compensation for personal damage. 66The mala fide recipient is obliged to return the fruits and pay default interest from the day of the receipt, while this obligation is imposed on the bona fide recipient from the day the action for restitution in unjustified enrichment was filed. 67Both recipients are entitled to reimbursement of the necessary and beneficial expenses they had with the received object, whereas the mala fide recipient gets the beneficial expenses reimbursed only to the amount of the increase in value upon return.The recipient is further obliged to pay compensation for the unauthorized use of another's assets. 68ue to the causal tradition system in Slovenian law, the unjustified model of restitution overlaps in certain situations with the owner/possessor model of restitution. 69Since its rules differ to some extent from those of unjustified enrichment, 70 the relationship between these two models is not merely an academic issue but also a matter of practical relevance.There is no consensus among the scholars as to which model should prevail in the event of overlapping.Some authors argue that the rules of the owner/ possessor model as a special and more recent law take precedence over those of unjustified enrichment. 71I do not share this view, as the owner/possessor model is applicable only to proprietary remedies (e.g.rei vindicatio). 72This approach was also adopted by the Slovenian Supreme Court. 73

DISENRICHMENT AS A MEASURE OF LIABILITY IN SLOVENIAN LAW
A disconcerting feature of the law of unjustified enrichment in Slovenia is that it does not contain any provision on subsequent loss of enrichment.The situation was similar in the Yugoslav Act on Obligations.This has led to several debates among scholars as to whether the measure of liability is the value received or the value remaining.In the process of adopting the Yugoslav Act, the prevailing opinion among members of the Federal Assembly commission, which was in charge of the law of obligations, was that the value received should be taken as the measure of enrichment liability. 74According to this view, subsequent losses of the defendant should not be taken into consideration.However, there was no generally accepted measure of liability in Yugoslav case law.While in some cases the courts applied the value received, the value remaining could also be traced in some judgements. 75fter the enforcement of the Yugoslav Act on Obligations, the Slovenian law of unjustified enrichment was strongly influenced by Stojan Cigoj, who was in favour of adopting the value remaining as the measure of enrichment liability.He interpreted the general clause which stated that if the restitution in kind is impossible, the recipient should repay the value of the benefit achieved, as a manifestation of the "enrichment principle", according to which the recipient is only liable for the existing enrichment at the time of the proceedings. 76The Slovenian theory supports this view. 77However, while the courts recognize the enrichment principle in general and apply it in certain types of cases, 78 there is no settled case law on its universal application in all types of enrichment claims.For instance, in relatively frequent cases of overpaid wages or pensions, in which the general rules of unjustified enrichment apply, the recipients never raise the disenrichment defence even though they would most likely meet all the required criteria for its recognition.Also, in general, the legal practice seems rather reluctant to use the doctrine of disenrichment.Therefore, the question inevitably arises whether disenrichment as a way of measuring liability should be generally recognised, taking into account its philosophical foundations and tendencies in other legal systems.
Additionally, if the "principle of enrichment" is to be generally recognised, it is unclear whether it should be applied as a rule or rather as a defence.In the first case, the remaining enrichment is treated as an aspect of the general enrichment enquiry, more precisely as an integral part of the "enrichment", as the first element of the action for unjustified enrichment. 79In the second case, the received benefit is the initial measure of liability, whereas the subsequent loss of enrichment can only be taken into consideration if the disenrichment defence is raised.The difference concerns the allocation of the burden of proof. 80Since the elements of the action should be proved by the claimant, the first system requires them to demonstrate the surviving enrichment in the defendant's hands. 81However, it is not the case if disenrichment is the defence, as it requires the defendant to produce evidence of subsequent loss.In English and American law, change of position is considered a defence.;inGerman law, its legal nature has been controversial due to its historical interpretation, 82 but it is nowadays widely accepted that it is a defence (Ger."rechtsvernichtende Einwendung"). 83n my opinion, disenrichment as a way of measuring liability should be generally recognized in Slovenian law.It aims to strike a fair balance between the interests of both parties and prevents a bona fide recipient from incurring loss due to restitution.Protection of the security of the receipt is another valuable reason that supports the idea of the general recognition of the disenrichment rule in our legal system.As an aspect of legal certainty and the rule of law, it is promoted also by the CJEU and ECtHR.Taking into consideration its philosophical foundations, in my opinion, disenrichment as a way of measuring liability is inherent to the law of unjustified enrichment, as it prevents the unjust results that restitution might lead to.Therefore it could be argued that it justifies an expansive cause of action in cases of unjustified enrichment. 84As regards its application in practice, opting for a defence seems to be a better solution.The recipient is thereby in a better position to evaluate their remaining enrichment and to prove the losses they suffered.Therefore, the value received is the first measure of the enrichment liability that should be proved by the claimant, while the value remaining is to be taken into account only if the change of position defence is raised and proved by the defendant.The Slovenian theory has recently suggested applying the "enrichment principle" as a defence 85 and has been followed by a decision of the Higher Court in Ljubljana. 86owever, it should be noted that despite the fact that the Slovenian Code of Obligations lacks a provision on general disenrichment defence, it does contain a rule according to which subsequent loss of enrichment in certain cases excludes the unjustified enrichment claim.More specifically, Article 195 of the Code states that "the debtor is not entitled to claim back compensation sums paid out for physical injury, damage to health or death without valid legal basis if they were paid to a bona fide recipient".In other words, if a bona fide creditor received compensation for personal damages without a valid legal basis (or if the legal basis subsequently lapsed) and spent the money received in good faith they can rely on disenrichment.Parliament's authentic interpretation of this article from 2004 87 added that this provision applies also to cases in which compensation was paid on the grounds of a final judgement (res judicata) that was subsequently reversed or set aside.Since the condictio ob causam finitam is also applicable to reversed or avoided judgements, this interpretation seems superfluous.
In practice situations often occur where a judgement debtor (often an insurance company) fulfils their obligation to pay compensation for damages under the final and enforceable judgement to a judgement creditor.Because either the debtor or the creditor (or both) disagrees with the final judicial decision, they file a final appeal on points of law to the Supreme Court.If the Supreme Court subsequently reduces the amount of compensation or sets the final judgement aside, the judgement debtor is entitled to claim restitution for the unjustified enrichment.Problems arise if the judgement creditor has already spent the money received.It could be argued that a special provision of the disenrichment defence, such as Article 195, denies the existence of a general disenrichment defence in Slovenian law, since the special article would otherwise be superfluous.However, this is not the case, as the provision was only recklessly enable a more generous approach to be taken to the recognition of the right to restitution, in the knowledge that the defence is, in more appropriate cases, available." 85D. Možina, 151 and 152.transplanted from former Soviet law, where the disenrichment defence was generally rejected. 88When applying this provision, the Slovenian Supreme Court adopted a very restrictive approach.For this reason, the judgement creditor can succeed with the disenrichment defence only in exceptional cases.According to the view of the Supreme Court, the recipient cannot rely on disenrichment if they knew or could have known that the final appeal on points of law was filed, as they should have been aware of the possibility that the final judgement could be reversed or set aside. 89rom that moment on, they bear the risk of potential disenrichment.In other words, if they spent the money received after they were informed about the filed final appeal on points of law, they cannot rely on disenrichment.To be more precise, they cannot rely on reliance-based change of position, however they are also not liable for non-reliancebased change of position (e.g. if the money received was stolen). 90The interpretation of the Supreme Court was adopted inter alia because of the fact that the rules on execution procedure do not explicitly recognise the disenrichment defence in the procedure of counter-execution. 91ccording to this, a debtor who claims back their payment in a counterexecution procedure would be in a better position than a debtor who files a restitutionary claim based on unjust enrichment rules, which recognise the disenrichment defence.
This view seems problematic because it interferes with the function of the finality of judgements.According to the maxim res judicata pro veritate habetur, the creditor does not have to expect that they will have to return the received payments.In German and English law, strict liability applies if the action for restitution in unjust(ified) enrichment has been filed, which is not the case if the proceedings for the final appeal are pending.It is my opinion that this should not be changed by the fact that the recipient is aware that the final appeal on points of law has been filed.This view is also supported by statistics, according to which, in 2017, 71% of the contested higher court judgements were confirmed by the Supreme Court. 92Thus, it is rather unlikely that a final judgement would be reversed by the Supreme Court, and even less so if the appealed judgement is in line with the settled case law. 93f a judgement creditor is not allowed to dispose of the money received (as they otherwise risks disenrichment), the institution of the enforceability of final decisions is completely negated.Furthermore, it is not in line with one of the main functions of damages, which is to promptly compensate the loss suffered, so that the purpose for which theywere awarded may still be achieved.The interpretation of the Supreme Court is strongly in favour of the judgement debtor, whereas the burden of subsequent disenrichment is fully on the judgement creditor's side.Such an approach is particularly questionable, as the judgement debtor who filed the final appeal on points of law has other effective legal remedies to protect their position.Namely, they can, under certain conditions (if they prove that they would otherwise suffer irreplaceable damage in excess of the harm caused to the judgement creditor by the postponement of the enforcement), demand that the court postpone the enforcement of the final judgement. 94

CONCLUSION
Change of position is a defence against an unjust(ified) enrichment claim stating that the recipient is no longer enriched.It was first introduced as a rule of loss of enrichment in the German and Swiss civil codes, under the influence of the Pandectists.Nowadays, it forms an integral part of the law of unjust(ified) enrichment in numerous legal systems and is as such promoted in the model rules of the DCFR and PEL Unj.Enr.It is underpinned by the "no worse off" rationale and aims to protect the security of the receipt; by doing so it reflects the principles of legal certainty and the rule of law.This has contributed to the recognition of the change of position defence in EU law.As a manifestation of the protection of property, the security of the receipt also enjoys the protection of the European Convention on Human Rights.According to the recent ECtHR case law, it seems that the Court is in favour of recognising the change of position as well.
The Slovenian Code of Obligations does not contain an express defence of change of position.However, there is a special provision which allows a bona fide recipient of compensation for personal injury to rely on disenrichment if it subsequently turns out that the compensation was without valid legal basis.It is therefore debatable whether the change 93 See also: D. Možina,165. 94 Article 71 of the Claim Enforcement and Security Act (Zakon o izvršbi in zavarovanju, Official Gazette of Slovenia, No. 3/07 with amendments).
of position defence should be universally recognized in Slovenian law, i.e. also outside the scope of wrongfully paid compensation.While theory supports this view, legal practice seems rather reluctant to apply it in all types of enrichment claims.Its philosophical foundations and the rationale underpinning it speak in favour of its recognition.However, when applying the change of position defence, the courts should find a proper balance between the interests of both parties, taking into account various factors, especially their good or bad faith, and the way in which the enriching event was brought about.
Para. 89 of the Judgement. 41See e.g.R. Williams, Unjust Enrichment and Public Law: A Comparative Study of England, France and the EU, Hart Publishing, Oxford and Portland 2010.