Article 1376 of the Civil Code makes restitution compulsory by “a person who receives in error or knowingly something which is not due to him”.
Proof that the conditions for bringing an action for recovery are fulfilled is the responsibility of the person seeking restitution.
The undue payment is the amount in excess of the sum actually due.
An overpayment is therefore deemed to exist in the absence of any debt which might ever have served as a basis for it.
In order to succeed in his claims, the employer must prove that he has paid a debt which did not exist and that he erred in doing so.
A number of decided court cases are based on the principle that the employer must prove that the person receiving the sum unduly paid acted fraudulently.
Examples
- the fact that the employee invoked overtime which he never worked.
According to most of the case law, it is not necessary for the recipient of the sum unduly paid to have acted in bad faith when receiving the payment.
There is no requirement for fraudulent subterfuges on the part of the recipient.
However, if the payment is made knowingly and voluntarily, even though there is no debt owed by the debtor to the creditor, there are no grounds for recovery.
It is to be noted that, since an employment contract is a synallagmatic contract, all wages are the quid pro quo for the performance of work and no wages are due unless they reflect work actually performed.