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VGH Kassel NJW 1983, 2831 IV OE 111/81
28 January 1983
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Professor Basil Markesinis


The claimant is the owner of a piece of land in Frankfurt am Main. The claimant on the 15. 2. 1977 entered into a commitment with the defendant to pay by a cash payment for the car parking places, which were necessary for the building of an extension. In 1979 she demanded the return of the sum of 24,000 DM which had been paid by her in the meantime, because of the ineffectiveness of the payment contract concluded between them, relying on the case law of the Bundesgerichtshof. The claim was unsuccessful and also failed on appeal.



The claim is unfounded. The claimant has no public law claim to reimbursement. Such a claim assumes that, within the framework of a legal relationship in public law, there has been a direct shift of assets for which there is no legal ground or for which the legal ground has later disappeared (references omitted). There was a legal ground for the payment which was demanded of and made by the claimant. The ground justifying the performance does not, it is true (and contrary to the view of the administrative court), lie in a payment condition of the valid notification of release of the 13. 10. 1977. (Details are given).

Instead, the legal ground on which the claimant paid the 24,000 DM was on the basis of a contract concluded between her and the defendant on the 14. 9./29. 9. 1977. A legal relationship can be founded by a contract in the area of public law in so far as legal provisions do not conflict with this (references omitted). That is the case here. The participants concluded a contract in the area of administrative law and did not, as is falsely stated in the text of the contract, make a private law agreement. This is because the sum paid by the claimant to discharge her parking places obligation served to secure that the defendant provided a public parking area, and would grant a notification of release and a building permit. All the measures here have been established in the area of public law (reference omitted).

This agreement also does not conflict with legal provisions in such a way as to make this public law contract void. Such a contract is in particular void if invalidity arises from analogous application of the provisions of the BGB (§ 59(1) of the Hessian Administrative Proceedings Act = HessVwVfG). This is not the case here. In particular the prerequisites of § 134 of the BGB, applied by analogy, are not present. According to this provision, a legal transaction which contravenes a statutory provision is void unless a different conclusion is to be drawn from the statutory provision. The agreement here does not disregard such a statutory provision. This is because such a prohibition is neither expressly nor tacitly present in the statute. In the Regulation concerning Garages and Parking Spaces (Imperial Garage Order = RGarO) of the 17. 2. 1939 (reference omitted) which is determinative here (which was still applicable in 1977 as state legislation), the conditions under which parking spaces were to be created by the developer individually or in a community complex were regulated in § 2 and in § 10. But, on the other hand, this statute did not regulate whether a release from the parking place obligation under § 58(2) of the RGarO was possible in the case where the person who wanted to build satisfied his parking place provision obligation by payment of a sum of money. No clue about this is to be found either in the preamble to the Imperial Garage Order or in the following provisions of this legislation. That does not matter however...


The agreement made between the parties is however not ineffective even from other points of view concerning the special contractual relationship. This is because it is an agreement in which the performance and counterperformance are linked with each other. A public law contract in the form of a reciprocal contract, as in this case, can be concluded by the contractual partner binding himself to the authority to carry out a counterperformance, if this counterperformance is agreed in the contract for a particular purpose and serves to fulfil the authority's public duties. The counterperformance must be appropriate in the light of all the circumstances and have an objective relationship to the contractual performance of the authority (§ 56(1) of the HessVwVfG). If the performance is not appropriate, and if it is not in an objective relationship with the contractual performance, then the authority has allowed an impermissible counterperformance be promised to it, which leads to the invalidity of the contract (§ 59(2) no 4 of the HessVwVfG). This special regime of positive law takes priority over the so called general prohibition on coupling in federal constitutional law which is anchored in the principle of the rule of law (reference omitted). But if it is borne in mind that the so called general prohibition on coupling says that (amongst other things) things that have no internal connection without it may not be linked with each other by a public law contract, the special regime described above is the same in content as this general legal principle.


It must first be made clear that, according to the unanimous view in the case law and doctrine an objective relationship cannot be found if the discharge sum does not provide for the creation of parking places, but other communal purposes instead (reference omitted). There can be no question here of such an alien use of the fund by the defendant. In no 4 sentence 1 of the contract concluded on the 14/29. 9. 1977 it says expressly that "the City is obliged to use the agreed sum exclusively for the creation of public parking places". There is no evidence of grounds for saying that the defendant has allocated this sum to other municipal duties contrary to the contractual obligation entered into by it.

There is an objective relationship between performance and counterperformance according to the view of this senate in the actual case. The superior courts of the ordinary and administrative jurisdictions have reached different decisions about when such a relationship exists. The civil courts demand a close relationship between performance and counterperformance.


This senate takes the concepts explained here, with certain modifications, as the basis of its own opinion. It regards the objective connection between the performance of an authority and the counter performance of the developer by remittance of the sum which he is under a duty to pay as being present if this sum is used, as in the present case by the defendant, in the inner city area ... for the purpose of creating new public parking space or maintaining public parking space which already exists. This follows on basis of the following considerations:

The payment contract, which was not provided for in the Imperial Garage Order and which, as described above, was not prevented by it, did not serve the real fulfilment of the duty to provide parking places in the sense of §§ 2, 10 of the RGarO. This statutory obligation was admittedly not satisfied by the discharge of the parking place obligation by payment of a sum of money, but at a different and lower level an appropriate replacement was provided. The discharge sum was, as the defendant has convincingly explained (and without being contradicted), not sufficient to cover costs of creating the necessary number of other parking places, at least in the above mentioned inner city area. It is only a question here of a sum for the construction of public parking space by the municipality which for its part had to raise the overwhelming part of the costs from taxes. However, the payment of a sum of money created the prerequisite for the authority being able to grant release from the parking place duty under § 58 II of the RGarO and grant the building permission subject to conditions (§ 70 IV 1 of the HessBauO, previous version).


The payment made by the claimant is also reasonable. It is undisputed between the parties that the claimant has not paid a sum which covers the costs of creating the necessary number of parking places. This is clear simply from the fact that the defendant had available from discharge sums only a part of the costs (less than half) for the creation of sufficient parking space, at least in the inner city area.
Again, § 67 VII of the HessBauO, new version, can be invoked here as a reference point for the reasonableness of the payment made. The actual wording of sentences 4 and 5 is as follows:

"The number of the necessary parking places is to form the basis for the sum of money. It is to be calculated according to the average provision costs of ground level public parking places in the municipality area and the land costs calculated on the basis of the value of the land of the person under the obligation and may not exceed 60% of these costs".

As the claimant's payment is not unreasonably high even according to this yardstick, this means overall that the payment contract concluded between the parties is effective according to § 56 of the HessVwVfG.

The result achieved in this way also appears to the Senate to be correct. This is because the repayment of the discharge sum because of the invalidity of the reciprocal contract would have as a consequence that the developer in question - here the claimant - would neither comply with the duty required by statute of creating the necessary number of parking places nor would have fulfilled the prerequisite for a release assumed by the building surveillance authority ie by participating in the resolution of the traffic problems on the public sector side. These facts could form the basis for measures under building law with the object of cancellation of the release and the building permission based upon it and the building use facilitated by these.

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