About three years ago, when Shanghai had just implemented garbage sorting, I went to Shanghai with my colleagues on a business trip to do an interview at a company in Jing'an District.
Because of the rush to rush the afternoon high-speed rail back, at noon we are near the customer unit casually looking for some food, I remember that at that time was the public commented to a dry pot bullfrog shop, the specific name can not remember clearly, only remember that the taste is not bad, the approximate location should be in the Wuning South Road area, interested friends can go to find, see if it is still not (do not rule out that the epidemic has been hung).
At that time, the two of us entered the store, the menu came up, are all kinds of flavors of bullfrogs, the signature recommended is the mouth frog, the price is 108, the pickled pepper frog, the price is 158, there are a bunch of spicy frogs, spicy frogs, this frog that frog... In short, it is basically a spicy approach, and the menu looks very similar, and it is difficult to distinguish which is which.
At that time, we both ordered a frog and ordered something else. Before the dish, I served a very good portion of the red bullfrog, which contained a variety of large thick legs, small short legs... At this time, the colleague muttered a sentence "Is this a hungry frog, can't tell the difference at all", I said at the time " Feel free, love whoever, if it's a bubble pepper frog, don't you still make a cheap profit, haha".
But as soon as the words were said, I suddenly smoked a little, thinking of a very boring but very interesting question, assuming that the waiter is really wrong, the 158 bubble pepper bullfrog as 108 hungry frog to give, the customer does not know, to eat, then the middle of the difference in the loss of who is counted, the diner has no obligation to make up the difference?
From the perspective of common sense of life, it should be unnecessary, because this is the fault of the waiter, the restaurant should admit it itself, and the customer does not pursue your dishes and do not understand it. However, it seems that it is not so simple to say one or two from the legal norms, which requires "finding the law". In the case of a civil lawsuit, if the hotel claims that the customer compensates the difference in price, it must find the basis of his claim.
I remember, I started with a contract... First of all, there is a catering service contract between the two of us and this bullfrog shop, the intention of both parties is clear and clear when ordering, there is no misunderstanding, obviously the contract is legal and valid, there is no problem of validity. So, where is the problem, out of the performance link, the hotel waiter on the wrong dish, did not strictly follow the contract performance, should constitute a breach of contract, but the hotel's breach of contract did not cause losses to customers, so there is no problem of compensation for breach of contract, then because of their breach of contract to their own losses, I think they should bear it.
This is from the perspective of the contract, which feels reasonable, but it doesn't make sense from this perspective. There are frequent competitions for claims, so is there another angle?
Therefore, we think of unjust enrichment, which is actually a cause rarely used in judicial practice, and few people will sue on the grounds of unjust enrichment return. However, I have always believed that unjust enrichment is a very important tool of thinking in civil law.
Back to this case, the hotel waiter mistakenly took the 158 bubble pepper bullfrog as the 108 mouth frog, objectively the hotel suffered losses, the customer profited, then the customer constituted unjust enrichment, need to return the difference?
First of all, look at the constituent elements of unjust enrichment, a total of four points, simply put, one party profits, one party suffers, there is a causal relationship between profit and damage, and profit lacks legal reasons.
In this case, I think it is in line with the first three elements needless to say, the customer profit (earned the difference), the hotel damaged (lost the difference), there is a causal relationship between the profit and the damage, for the fourth point, the customer profit is actually no legal reason, because the 50 yuan difference in the benefit of the profit is no contractual basis, there is no other legal reason.
Well, constitute unjust enrichment. Well, since it constitutes unjust enrichment, should the customer return the difference of 50 yuan according to the general rules of unjust enrichment? According to the general rule, it should be returned, you are not profitable, why not return.
But common sense tells us that it is unreasonable to ask customers to return here, customers do not have any fault, if in this case, customers are also required to make up the difference, then after the restaurant no one to give a good dish, the routine will play up, customers do not ask clearly before they dare not get off the chopsticks, in short, chaotic set.
However, it was this problem, when I was thinking about it, the Civil Code had not yet been promulgated, and according to article 92 of the General Principles of Civil Law at that time, "if there is no legal basis, improper benefits are obtained, and others are caused by losses, the improper benefits obtained should be returned to the person who has been lost".
The reason is that the "General Principles of Civil Law" is indeed too rough, and in the face of this situation, judges and lawyers are required to exert their initiative in judicial practice, to invoke jurisprudence and even comparative law to supplement the interpretation, so that the judgment is at least not divorced from basic common sense.
Now, after the promulgation of the Civil Code, the above-mentioned questions will be perfectly answered under the unjust enrichment system. The reason is that the Civil Code fills the legal loopholes and introduces the concepts of "bona fide unjust enrichment" and "malicious unjust enrichment" that they had in Bay Bay before.
Article 986 of the Civil Code provides: "If the beneficiary does not know and should not know that the benefit obtained has no legal basis and the benefit obtained no longer exists, he shall not be obliged to return the benefit." ”
Article 987 of the Civil Code provides: "If the beneficiary knows or should have known that there is no legal basis for the benefit obtained, the person who suffered the loss may request the profitee to return the benefit he has obtained and compensate for the loss in accordance with law." ”
To put it bluntly, whether the profiteer is obliged to return depends on the subjective state of the profit, if you know that you have made a bargain, then you should return, if you do not know and the cheap you have earned can not be returned (for example, you have been eaten dry and wiped clean), then there is no need to return. Because here, we must consider the reasonable trust of the profiteer.
This is good, according to this set of relatively fine rules, bullfrog case, in the face of the extreme similarity between the mouth frog and the bubble pepper frog, unless it is a familiar customer who eats with this family every day, the general customer is not clear, subjectively unaware, after the customer eats, the hotel you say is wrong, then sorry, he has eaten, you yourself pocket, bear the loss. If he has not eaten and the restaurant has found it, then you should apologize and remove the wrong dish, and the customer is also obliged to cooperate with the removal.
Of course, I have also encountered that in some hotels in Beijing, the dishes on the wrong table, even if the customers have not moved, the hotel also chooses to "punish themselves with a cup", do not withdraw, the dishes are counted as gifts, this is the hotel's own "exquisite", in the field of private law, give up rights, private rights to dispose of, the law is not questioned.
The above is a little additional gain from eating bullfrogs, and I also really felt the iteration and progress of the Civil Code compared to the General Principles of Civil Law through eating, and shared it with everyone.