L’arricchimento ingiustificato nel sistema delle tutele. Per una sussidiarietà in senso positivo

This article examines unjust enrichment within the Italian legal system, arguing for a positive interpretation of the subsidiarity principle. The author analyzes enrichment as a distinct remedy protecting the power of disposition over rights, particularly in cases where other legal actions prove inadequate. After discussing a significant step forward in the jurisprudence concerning industrial property rights infringement (Court of Cassation, July 29, 2021, n. 21832), the author critiques two recent decisions that represent backward steps: one on the subsidiarity rule (December 5, 2023, n. 33954) and another on unlawful occupation of land (November 15, 2022, n. 33645). The author contends that Italian courts have fallen into an "aquilian-centric" approach that reduces enrichment to a mere surrogate for damages compensation, thereby impoverishing the system of available remedies. The article proposes that enrichment should operate as an autonomous and non-residual tool for restitution, especially when addressing shifts in wealth rather than destruction thereof.