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Case:
BGH NJW 1990, 706 IVb. Civil Senate (IVb ZR 56/88)
Date:
19 December 1989
Judges:
Professor B.S. Markesinis
Copyright:
J.A. Weir

1. A man may not sue his divorced wife in tort for the economic loss due to his making maintenance payments to an apparently legitimate daughter actually the product of the wife’s adultery.

2. § 826 BGB may be applicable if, in addition to the adultery, there is some other very improper and harmful conduct.

Facts:

The parties, married in 1953, were divorced by judgment of 24 April 1959 on the ground of the fault of the present plaintiff (then defendant). During the marriage two daughters were born, first B and then, on 22 March 1957, S. After the divorce custody of the daughters was awarded to the defendant, and acting as their statutory representative, she sued the present plaintiff for maintenance payments in 1960, 1964 and 1965. In 1960 she garnished the plaintiff’s earnings as well as the disability pension which the plaintiff received while occasionally unemployed through TBC. From the summer of 1966, the plaintiff paid maintenance money for the children by agreement and without court order. In 1986 the plaintiff sued for a declaration that S was illegitimate, and the Amtsgericht in W held that S was not the child of the plaintiff.

The plaintiff now sues the defendant for damages in respect of the maintenance payments he has made since the divorce in respect of the child who was not his and whom he was not bound to support. He alleged that in making the claim for maintenance as the daughter’s legal representative, the defendant had represented that he was the father of the child. The defendant replied that she had never doubted the legitimacy of S, and had never noticed the lack of resemblance between her and the plaintiff, which was not at all obvious. The Landgericht dismissed the claim, and the Oberlandesgericht dismissed the plaintiff’s appeal, as did the Bundesgerichtshof.

Reasons

I. The court below held it doubtful that the plaintiff had any tort claim for economic loss against his ex-wife on the ground of the illegitimacy of the child S. Founding on the constant decisions of the Bundesgerichtshof the court inclined to the view that the sanctions for anti-matrimonial conduct were to be found in family law exclusively, and that the law of delict afforded the plaintiff no further claim.

Even had claims for damages not been excluded by the provisions of family law, the court below would have dismissed the claim, for the defendant had not deceived the plaintiff in such a way as to render her liable in damages, either by making the claims for maintenance which, until the finding of illegitimacy, were vested in her daughter S, or through any culpable failure to disclose: the defendant was under no duty to confess her adultery or admit the possibility that S might have another father. Finally, claims in tort failed for lack of the requisite mens rea: it had not been shown that the defendant had appreciated that the plaintiff was not the father of S, and the mere fact of promiscuity, as to which no findings were made as regards the time of conception, did not establish that she had.

II. We agree with the result reached by the court below.

1. There is no doubt that the plaintiff has suffered economically as a result of the defendant’s conduct: for years he has been paying maintenance which he did not owe. As the apparent father of S he was burdened with paying for her upkeep, until the judgment of 25 March 1987 finally declared that S was illegitimate and that it was her true father who had always been liable to make the payments [references].

2. Nevertheless, the law of tort does not permit the plaintiff to sue his ex-wife for this economic loss (BGHZ 80, 235 [238] = NJW 1981, 1445).

(a) When the BGB was in draft the question was already being ventilated whether an innocent spouse (as the law then was) could claim compensation for harm due to breach by the other spouse of the duties assumed on entering the marriage, and since that time it has often been the subject of judicial decision and academic discussion.

Such a claim was originally rejected as incompatible with the nature of marriage, on the view that to grant it would amount to penalising divorce in a way which the BGB, in conscious deviation from prior law, had elected not to follow (see BGHZ 23, 215 [216] = NJW 1957, 670 = LM § 823 (Af) BGB no. 5, with references to the Motive to the BGB, vol. 4, p. 615).

In its first decision on the matter (31 March 1956), the Bundesgerichtshof declared that claims for damages for spousal infidelity under § 823 BGB were ousted by the provisions of family law regarding such conduct. This was criticised, but in BGHZ 23, 215 ff. = NJW 1957, 670 the court adhered to its view, and relied inter alia on the following considerations: The BGB contains many provisions on the duties assumed on marriage and the consequences of their breach (especially the Marriage Act, and §§ 1353, 1361, 1933, 2077, 2335 BGB); the very existence of this special set of rules indicates that in principle the consequences of a breach of spousal duties are to be determined exclusively in terms of those rules. It is true that the personal and economic consequences of getting married must be kept distinct. Those which appertain purely to family law, such as the duty to live together and the duty of fidelity, are fulfilled by appropriate conduct. Should such duties be breached, the consequences are to be drawn not from the law of obligations but, consistently with the nature of marriage, from the provisions of family law relating to such breaches.

In its judgment of 6 February 1957 (BGHZ 23, 279 ff. = NJW 1957, 671) the court applied to the third party adulterer the principle that the antimatrimonial conduct of a spouse did not give rise to any claim for damages in the law of obligations independently of the provisions of family law, especially the Marriage Law (and compare BGHZ 26, 217 ff. = NJW 1958, 544). Again it stated: ‘Although antimatrimonial conduct can undeniably cause harm to the “innocent” spouse, especially if it leads to divorce, the law does not afford any compensation outside the provisions of family law, so antimatrimonial conduct cannot be treated as an unlawful act grounding a claim for damages under §§ 823 ff. BGB.’

In 1971 the BGH returned to the question (BGHZ 57, 229). Again it rejected the view expressed by academics [Boehmer in many articles, Beitzke, Dölle, Gernhuber and Jayme] that breaches of marriage vows should trigger liability under § 823 I BGB, and asserted that marriage is not one of the relationships whose breach can give rise to general claims for compensation for economic harm. In more detail it confirmed that it would adhere to the view that marriage vows were not among the rights protected by the law of tort in § 823 I BGB. Since the consortium of the spouses could only be disrupted by the participation of one of them, such breaches constitute essentially a matter internal to the marriage, not under the intended protection of the law of torts (BGHZ 57, 229 [232] = NJW 1972, 199).

In a judgment of 22 February 1973 (NJW 1973, 991), the Sixth Civil Senate of the Bundesgerichtshof adopted the view of the Fourth Senate (as it then was). Then the question was whether damages could be claimed on the basis of an invasion of the right of human personality rather than an invasion of the integrity of the community of marriage. The court refused to allow this, on the ground that the rather fluid limits to the general right of human personality had to be drawn in the light of other legal provisions, in this case the considerations stated by the Fourth Civil Senate (as in BGHZ 57, 229 = NJW 1977, 199), and though in many cases of antimatrimonial behaviour there would be a serious invasion of the right of personality—perhaps always in the case of adultery—yet to impose liability in tort would conflict with the more specific prescriptions of family law.

(b) In BGHZ 80, 235, the mother of a child conceived out of wedlock made false representations to the father and thereby induced him to marry her. This senate made the general observation, in line with the decisions of the Bundesgerichtshof, that obligational claims, especially tort claims for damages, are ousted by the exclusive special rules of family law, the Supreme Court having uniformly held that a husband whose wife had committed adultery and borne a child could not bring an action in tort against the wife or the third party for compensation for the economic harm he suffered as a result of the apparent legitimacy of the child (BGHZ 80, 235 [238] = NJW 1981, 1445). Because of the peculiar facts in that case, however, the point did not fall for decision, but in the present case it does. A pointer in the same direction is the decision of this court on 4 November 1987 (NJW 1988, 2032) that the personal duties arising from the community of marriage can only be fulfilled by the free moral choice of the parties, and that even indirect compulsion by the state, such as a penalty clause or damages, must be excluded.

In this case, where after a divorce the apparent father is suing his ex-wife (not the real father) for damages in respect of the maintenance he has for years been paying for a child not his, this senate has again considered the matter afresh. We adhere to the holdings which the Supreme Court has increasingly confirmed since the introduction of the BGB (on the significance of continuity of holdings and legal certainty, see Grosser Senat, BGHZ 85, 64 [66] = NJW 1983, 228). We endorse the view that matrimonial difficulties which affect the inner social and sexual life of the partners, adultery being the chief of these, represent a matter internal to the marriage which is not within the protective ambit of the rules of tort [references].

This view was formed by the Bundesgerichtshof under the previous law of marriage; ideas have changed, but the view is even more strongly justified after the first reform law of marriage. Whereas under prior law (§ 58 I and II Marriage Act) the party whose adultery led to divorce and who was solely or principally at fault faced sanctions in regard to maintenance—either the loss of a claim for maintenance or liability to provide it—under the present law ‘fault’ which leads to the breakdown of the marriage does not in principle bar the ‘guilty’ spouse from claiming maintenance if in need, save under § 1579 nos. 6 and 7 BGB in cases of hardship. If there was no liability in tort for adultery under prior law which provided for financial sanctions for such conduct, there is no reason now that the fault principle has given way to the principle of the breakdown of marriage to deviate from the previous decisions and allow claims for damages in tort for conduct which impairs the marriage. This senate therefore adheres all the more strongly to its previous position that it is incompatible with the essence of marriage to apply the law of damages to internal matrimonial matters; marriage and family law oust the law of tort.

Thus not only claims based on § 823 II BGB but all suchlike claims in tort between divorced spouses are excluded if the right alleged to be invaded is the ‘very core of marriage’ and the ‘interest it seeks to protect’ or ‘marriage as an ideal legal interest’ (Gernhuber) or the ‘personal moral bond of marriage’ (Soergel-Lange), the ‘right to fidelity in marriage’ (Gernhuber, Enneccerus-Lehmann) or ‘the maintenance of sexual fidelity’ (Wacke), the ‘right to the protection and continuance of the matrimonial community of living’ (Berg, Lüke), the ‘absolute right of the spouses to complete and exclusive consortium’ (Dölle) or—based on § 1353 BGB—a ‘claim to enjoin conduct which disturbs the marriage in the area of personal duties of marriage’ (Jayme).

The sanctions of tort law may, by contrast, apply to marriage in its external objective and spatial aspects (BGHZ 6, 360 ff. = NJW 1952, 975; BGHZ 34, 80 ff. = NJW 1961, 504), normally vulnerable only by third parties, or, as the Fourth Senate (as it then was) stated in BGHZ 26, 217 [221] = NJW 1958, 544, to the invasion of other legal rights, as for example damage to the health of a spouse through infection resulting from adultery (see Tiedemann, NJW 1988, 729).

But as to the internal mutual relations of the spouses inherent in their matrimonial and sexual community, claims for damages in tort are excluded for the reasons given. Thus adultery by itself cannot be treated as conduct generating liability in damages. If, as in the present case, the wife breaches her duty of fidelity, commits adultery and conceives a child which, until a declaration of illegitimacy, rates as the child of the husband who then pays for her maintenance, he cannot after successfully establishing the illegitimacy of the child use the law of tort to claim compensation for the expense he has been put to because the child was apparently his (BGHZ 80, 235 [238] = NJW 1981, 1445).

3. (a) But the fact that claims for damages under the general law of tort in respect of the consequences of adultery are ousted by the provisions of marriage and family law does not mean that if there are further aggravating factors the special tort rule of § 826 BGB may not be applicable. § 826 BGB is a ‘rule of law at a higher level’, providing a general standard applicable throughout the whole of private and public law, and comparable in this respect with the all-pervasive principle of § 242 BGB. It is true that the former Fourth Civil Senate deviated from the jurisprudence of the Reichsgericht (RGZ 152, 397 ff.) and held that claims arising from antimatrimonial conduct were barred under § 826 BGB as well (BGHZ 23, 217 [221] = NJW 1958, 544), but that was a case in which there were no special circumstances over and above the adultery which, combined with it, constituted causing harm contra bonos mores. Such factors were, by contrast, present in the case decided by the Reichsgericht (Warn. 1935 no. 184) where the adulterous wife and her lover conspired by false statements to procure the dismissal of the husband’s claim for a declaration of the illegitimacy of the adulterine child. The Reichsgericht was right to allow a claim for damages under § 826 BGB in that case (and see RGZ 152, 397 [400]). In exceptional cases, therefore, § 826 BGB can apply to disruption of the internal and sexual relationship of husband and wife, especially through adultery, if in addition to the adultery the errant spouse is guilty of further immoral damaging conduct, characterised by an intention, albeit a qualified intention, to cause harm. Whether conduct is immoral under § 826 BGB depends on the standards inherent in that text, not on those appropriate to the spousal community. This is not the case when the wife merely fails to make spontaneous avowal of her act of adultery and leaves the husband in the belief that the child is his. The mere fact that the wife concealed her infidelity does not amount to an immoral wrong in the sense of § 826 BGB, for there is no duty, sanctioned by the law of damages, to tell one’s spouse of one’s adultery (RGZ 152, 397 [401]). To require a spouse to make such disclosure would normally be excessive, especially as she would quite often find herself in an insoluble dilemma, for disclosure would not only affect her own interests but also imperil the child’s interest in maintenance.

There might, by contrast, be a claim under § 826 BGB if a wife who had conceived a child in adultery made false statements or outright denials in order to dispel her husband’s doubts about its paternity, or if she prevented her husband by deceit or otherwise, say by duress, from pursuing a claim for a declaration of illegitimacy.

(b) No such conduct by the defendant has been established in this case or appears from the facts in evidence.

(aa) The plaintiff himself has not alleged that during the period when he was in contact with the child S he ever expressed any doubts about her paternity which the defendant allayed by false statements or otherwise. He rather claims to have been deceived by the fact that the defendant ‘never made an issue of paternity’ and did not volunteer an admission of her adultery. This is not enough to meet the requirements of § 826 BGB.

(bb) Nor does the conduct of the defendant in ‘energetically asserting the apparent rights’ of her daughter in several court cases constitute an immoral wrong under § 826 BGB, as the plaintiff alleges.

As the statutory representative of S the defendant sued in April 1960 for monthly maintenance payments of DM 75, which the plaintiff had earlier agreed in writing to make. In 1964 the defendant sought an increase to DM 100 per month and in May 1965 a further increase to DM 130, as well as demanding a like sum for her daughter B, who was four years older. The total sums claimed were in line with the figures in the Düsseldorf Tables for the maintenance by persons in the second and third income groups of children between six and ten years old (S) and between ten and fourteen (B), and the amounts were manifestly reasonable.

Nor is § 826 BGB satisfied by the defendant’s conduct in garnishing the plaintiff’s wages and then his pension when he did not punctually pay the sums he had agreed or been ordered to pay. The daughter S needed the payments to meet her living needs. Until declared illegitimate, she ranked as the legitimate child of the plaintiff (§ 1593 BGB) and he was liable for her maintenance under §§ 1601, 1602, 1603 BGB. As the child’s statutory representative, the defendant was bound to see to making these claims in the interests of the child, and in making and enforcing the maintenance claims she was acting in justified pursuance of the interests of the child. If, instead of parental control being vested in the defendant, a curator had been appointed (§§ 1629 II, 1795 I no. 3, 1903 BGB) to claim the maintenance payments and resist the claim for a declaration of illegitimacy, such curator would likewise have been bound, until the illegitimacy was established, to sue the defendant for the maintenance payments if necessary, and to enforce them by execution if not voluntarily met (§§ 1915, 1793, 1833 BGB). Such conduct by the curator would not have been essentially different from what the defendant did. This shows that in pursuing maintenance claims for S the defendant remained within the limits of the means and methods provided by the legal system and that she cannot on that ground be found guilty of an immoral wrong under § 826 BGB.

(cc) Alternatively the appellant seeks to found his claim for damages on the principles developed by this court in BGHZ 80, 235 ff. = NJW 1981, 1445. He alleges that the defendant’s failure to make requisite disclosure and her implicit assertion of his paternity by suing for maintenance prevented the plaintiff from seeking an earlier declaration of illegitimacy, and that this was in law tantamount to the fraudulent inducement to marry in that case.

This is not acceptable. In BGHZ 80, 235 = NJW 1981, 1445 the defendant had conceived the child before marriage and not as a result of adultery in breach of marriage vows, so the facts there were essentially different from this case, where the central question is whether breach of the marriage vows can generate a claim in tort. Furthermore, in that case the mother of the child had expressly and indeed in writing misrepresented the facts by assuring the plaintiff that during the statutory period of conception she had had congress ‘with him and him alone’ and so deliberately allayed his doubts about the paternity of the child about to be born. She thus induced the plaintiff to enter the marriage and procured that the child was born legitimate and would be maintained by the plaintiff until a declaration of illegitimacy. Such deceitful conduct on the part of the mother constituted conduct apt to generate liability in damages for intentionally causing harm in an immoral manner under § 826 BGB as explained. No comparably harmful conduct apart from the adultery itself can be laid at the door of the defendant here.

Notes to Cases 26–29

1. The fourth book of the BGB deals with family law, but problems of family life have also tried to penetrate the law of torts under the heading of ‘other rights’ of § 823 I BGB. (The first decision on the matter was decided by the BGH on 26 June 1952 (BGHZ 6, 360 = NJW 1952, 975) and it was rendered as a result of an action brought by a betrayed wife who sought an injunction to stop her husband’s mistress from residing in the marital home. Though the court recognized that delictual protection should be afforded to the spatial and material sphere of matrimony—räumlich-gegenständlicher Bereich der Ehe—it did not decide whether this should be achieved by means of § 823 I BGB or through the direct application of Art. 6 of the Constitution by virtue of Art. 1 III of that enactment. As a result of this, wives have been given the right to enter the premises of a company run by the husband (BGHZ 34, 80, 87) or to insist that they be allowed to work at the family bakery (BGHZ 35, 302, 304).) Such attempts have, on the whole, met with varied, perhaps modest success but this has not discouraged litigation. The proper role of tort law in the context of disrupted family relations has also given rise to a lively literature which can be found (along with a neat summary of the various views) in Medicus, nos. 616 et seq., pp. 369–70. Cases 20–23 come from this area of the law and also show how German judges bring together different parts of their Code and thus try to retain an ‘internal balance’ in the Code. (Earlier cases are reviewed by Markovitz, ‘Marriage and the State: A Comparative Look at East and West German Family Law’ 24 Stanford L. Rev. 116 (1971).) Overall, however, the BGH—rejecting academic suggestions—has shown a preference for the view that ‘marriage is not one of the relationships whose breach can give rise to general claims for compensation for economic harm’. (See BGHZ 27, 229; BGH NJW 1973, 991; BGHZ 80, 235; BGH NJW 1990, 706 = Case no. 23, above.)

2. The ‘innocent spouse’s’ losses can be pecuniary or non-pecuniary. The former include such items as the cost of delivery of the child (discussed in case 21), its maintenance, the cost of illegitimization (not allowed by cases 20 and 22), and of divorce proceedings; the latter can refer to the breakdown of the marriage or nervous or other illness resulting from such upheavals. Those who argue against the trend shown in the cases reproduced above are really arguing in favour of a wider recognition of the first type of loss, not the second.

3. These and other analogous cases raise many points. Here are some: If the ‘innocent husband’/plaintiff pays for the cost of delivery of the child, the natural father is enriched by a corresponding amount and must, therefore, pay the former that amount. The reasoning given for this in case 21 (but not the final result) has been doubted (see Medicus, 304). Likewise, maintenance paid by the ‘innocent husband’/plaintiff for an illegitimate child may be claimed from the natural father after the child has been declared as illegitimate. The old case-law (BGHZ 24, 9 ff.) is now embodied in § 1615b BGB. But a husband’s tort action against a divorced wife for the economic loss due to his making maintenance payments to an apparently legitimate daughter (who was actually the product of the wife’s adultery) will fail. So held the BGH in NJW 1990, 706, Case 23 above, restating its motto: ‘Marriage and family law oust the law of tort.’ A claim under § 826 BGB might, however, succeed if the requirement of immorality of this provision were satisfied. Mere marital infidelity will, thus, not do. It would be otherwise, however, if, for example, it could be proved that the woman and her lover had conspired to procure the dismissal of the husband’s claim for a declaration of illegitimacy: RGZ 152, 397 which, apparently, is still good law. (For further details, the reader must consult books on family law.) BGH NJW 1990, 706 contains some interesting dicta which explain this preeminence of § 826 BGB. The costs of divorce are usually shared by the spouses—§ 93a I ZPO—but the ‘innocent spouse’ can subsequently claim his share of the divorce costs from the ‘marital intruder’. But no damages can be claimed for the act of infidelity (case 22).

4. Some of these points may not arise at all in Common law jurisdictions; others do, and often receive similar solutions. In the US, for example, attorneys’ fees are borne by the parties unless otherwise provided for by statute. To that extent, therefore, case 20 has no equivalent. In England there seems to be no case which has awarded costs or compensation for the expense of proving a child to be illegitimate, though Halsbury, vol. 13, 4th edn., § 970, does not in terms exclude the possibility. Disavowing a child born in legal wedlock can also receive a different treatment. In England it is possible but not easy, there being a presumption of legitimacy. In the United States the answers are more varied, some States adopting irrebuttable presumptions of legitimacy, others imposing a short period of time following birth within which the illegitimization proceedings must be brought (Pounds v. Schori 377 So. 2d 1195 (La. 1979) (six months); cf. Singley v. Singley 140, So. 2d 546 (La. App. 1962) where a child was born more than three hundred days after separation of husband and wife and the husband was permitted to disavow). (See Clark, Law of Domestic Relations, 172 (1968).) But if the father refuses to disavow a child, no one else will normally be allowed to do so. (See Petitioner F. v. Respondent R. 430 A. 2d 1075 (Del. 1981), where a natural father, who sued for custody of the child which was conceived while its mother was married to another man, had his action dismissed for lack of standing to sue.)

5. The problem discussed in case 22 is still known in some American jurisdictions under the name of criminal conversation. Kremer v. Black 201 Neb. 467, 268 NW 2d 582 (1978) is an example. But most States have abolished such actions and much criticism is still made against those who recognize it. The action is no longer known in English law. (It was abolished by the Law Reform (Miscellaneous Provisions) Act 1970, s. 5.) In the Commonwealth, the action for enticement was abolished somewhat later. Thus in Australia this was done by the Family Law Act 1975, s. 120. In New Zealand on the other hand the action for enticement was enshrined in legislative form as late as 1975 (see Domestic Actions Act 1975, s. 3); but it was abolished five years later by the Family Proceedings Act 1980, s. 190. For further discussions one must consult family law textbooks as well as older editions of Tort treatises.

9. ‘Established and operating business’

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