A.H. 20/82 Adres v. Harlow P.D. 42(1)221

Occasionally when a hearing in the Supreme Court has ended, a point of legal ambiguity that had been raised may be discussed in more depth in an additional hearing composed of greater number of judges. In Harlow V. Adres P.D. 37(4)225 an alternative argument of unjust enrichment was rejected by Justice Ben-Porat on the ground that the laws of unjust enrichment apply only when there is no contract. In the additional hearing this ruling was overturned.

The Court ruled that although there was no entitlement to damages under the Hague Uniform Law of International Sales, (ULIS), Adres was entitled to restitution under the laws of unjust enrichment. Harlow had been enriched by the extra profit gained through breach of contract and therefore the court ruled that this profit belonged to Adres. The Court developed the precedent that the laws of unjust enrichment apply even when there is an established contract between two parties.

It must be noted, as a critique of this decision, that resorting to domestic legal doctrines that are not recognized as general principles in ULIS is problematic, being inconsistent with the objective of ULIS to provide uniformity in international trade law. Turning to internal law when ULIS has already verified its position on the conditions under which the buyer can receive compensation, would seem to contradict the spirit and purpose of the 1964 Hague Convention.