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Case:
BGH JZ 1973, 668 VI. Civil Senate (VI ZR 172/71) = NJW 1973, 991 = VersR 1973, 442
Date:
22 February 1973
Note:
(with approving note by Manfred Löwisch)
Translated by:
K. Lipstein
Copyright:
Professor B.S. Markesinis

The plaintiff married in 1965 and was still married at the time of the action, living together with his wife. From 1 October 1968 until 10 October 1968 the wife remained absent from the marital home at the invitation of the defendant with whom she stayed in his flat. It was not disputed that acts incompatible with marital fidelity occurred during the time; according to the plaintiff’s allegation adulterous intercourse occurred as well.

The plaintiff contended that by the adulterous conduct of the defendant his general right of personality and his right to the undisturbed existence of the marital community had been violated. He claimed DM 10,000 with interest as ‘compensation and satisfaction’ to be paid either to himself or alternatively to a charity. The claim was rejected in all three instances for the following

Reasons

I. The Court of Appeal assumes, in accordance with the plaintiff’s pleadings, that the plaintiff’s wife and the defendant committed adultery. Nevertheless, it rejected the claim and held as follows:

The plaintiff was wrong in referring to the practice of the Bundesgerichtshof according to which a person whose right of personality had been injured can in certain circumstances demand pecuniary damages as compensation for his non-pecuniary damage. This claim too—like that for pain and suffering—was a claim for damages, while its function of providing satisfaction was only ancillary. No room existed in addition for a separate claim for satisfaction as understood by the plaintiff. A claim for damages—on whatever grounds—was excluded since special family relations were involved. To this extent the Court of Appeal follows the practice initiated by the decision of the Bundesgerichtshof [reference] and holds that the same principles must apply to non-pecuniary and pecuniary damage (and injury to health). Above all, the damage alleged to be suffered by the plaintiff was caused by the unfaithful conduct of his own wife.

The Court of Appeal believes that any payment to the plaintiff is ruled out in particular for the reason that his marriage continues. The fact that the payment would inevitably also benefit indirectly the wife, who was equally or principally to blame, was clearly unacceptable.

Similarly payment to a third party was excluded. According to the Court of Appeal it would amount to the imposition of a penalty upon the defendant which was not supported in law.

The Court of Appeal admitted that an intrusion into marital life of the kind alleged in the present case constitutes a violation of the general right of personality of the deceived spouse. However, here again the considerations applied which also excluded other claims based on tort.

II. These considerations cannot be faulted, at least in the result.

1. The plaintiff bases his claims on the fact that the defendant was an accomplice to the breach of fidelity for which the plaintiff’s wife was to be blamed. According to a constant practice of the Bundesgerichtshof, maintained until now in the face of attacks by some writers [references], no claims in tort are allowed by the law in force in cases of ‘intrusion of a marriage’ either against the guilty spouse or against the intruding third party. The Fourth Division of the Bundesgerichtshof last reaffirmed this practice in its decision of 3 November 1971 [reference] supported by detailed reasons and accompanied by an account of the present views of writers. In that decision the Fourth Division has given a comprehensive account of its reasons for denying unconditionally and generally that matters of intrusion into marriage involve legal interests protected by the law of tort under § 823 I BGB. The Fourth Division points out that without the co-operation of one of the spouses no interference with the marriage can occur and that, therefore, it constitutes essentially an internal marital matter, which is not sought to be protected by inclusion among the situations attracting liability in tort. In view of its strong link with the conduct of the unfaithful spouse the participation of the third party must be coloured by it as well. It is inadmissible to divide their activities into misbehaviour of the spouse governed by matrimonial law and a tort committed by the third party rendering him liable to pay damages. The Fourth Division has pointed out further that it is difficult, having regard to the multiplicity of possible acts of interference with marital relations, to establish suitable limits for any such liability and that the necessary enquiries, as required in the individual case, would have undesirable effects in various respects. For this reason disputes arising out of marital misconduct are treated exclusively as matrimonial matters, even where third parties are involved. The Division sees no reasons for deviating from these principles. They militate also against the present claim for payment as satisfaction for the non-pecuniary loss of the offended spouse. Even among those writers who are opposed to the practice of the Bundesgerichtshof only very few believe that such a payment is allowed by the law as it stands [references].

2. Contrary to the appellant’s main contention, the claim cannot succeed either if in applying § 823 I BGB emphasis is placed on the violation of the plaintiff’s general right of personality rather than on that of the integrity of the marital community. It is true that according to the practice of the Bundesgerichtshof, particularly of this Division, a claimant whose general right of personality has been severely infringed may be awarded pecuniary damages for his non-pecuniary loss, provided that additional conditions have been met [references]. However, in so far as the right of personality of a spouse has been infringed because a third party acting together with the other spouse has interfered with the right to the integrity of the marital community, as in the present case, any claims for damages in tort must be denied for the reasons stated above which rule out liability in tort when the right to the integrity of the marital community has been violated. In many cases where a marriage has been subject to interference, and probably in all cases of adultery, the conditions enumerated above will exist for holding that the right of personality has been severely infringed. Therefore, the Court of Appeal, too, assumes that such a violation of the right of personality has occurred. To take such a view of the law would, however, run contrary to the requirements based on the evaluation of the narrower sphere of family law [reference]. This applies at any event in those cases where, as in the present, the violation of the right of personality is restricted to an interference with the matrimonial community of life and fidelity by a third party with the necessary participation of the other spouse.

3. Contrary to the plaintiff’s contention no reason exists for taking a different view of the law either because of a fundamental change of public opinion, or because of a conflict with the values expressed by superior norms of the Constitution.

(a) The refusal to enforce matrimonial conduct by public measures, already apparent in the Preparatory Materials for the BGB [reference], has been reinforced still further. An enforceable claim for damages would be equal to such a measure; for this reason it has been recommended expressly as a means of ‘deterrence’ [reference]. The increased aversion of the legislature to such measures is shown by the fact that the provision of a penalty according to the former § 172 of the Criminal Code—which had been hedged around already by narrow conditions (not applicable here)—was abrogated; it is irrelevant in the present connection that this change in the law only took place after the alleged act of adultery.

(b) The rejection of the claim for damages in a case such as the present does not contravene either the values of superior norms of the Constitution on which the Bundesgerichtshof relied in its practice relating to the right of personality. The limits of the general right of personality recognized and protected by § 823 I BGB are flexible. They can always be drawn only with reference to other areas which are protected by law. In the present case these emerge from the observations made above.

The legislature has refrained from enforcing proper marital conduct directly or indirectly by public measures (see also § 888 II of the Code of Civil Procedure), including any penalties and equivalent measures for adultery, and has contented itself with the protection provided by family law. Having regard to the special character of this subject-matter, it cannot be included that the importance of the protection of the personality has been misunderstood and has not been taken into account sufficiently. Instead it expresses the conviction that highly personal relations should not be regulated by law, which is at least compatible with constitutional law and corresponds to modern ethics.

(c) Finally, a conclusion to the contrary cannot be based either on the protection of marriage provided by Art. 6 I of the Constitution, which the appellant rightly does not cite. Admittedly marriage is a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties. Its essence, however, consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it. The provision of Art. 6 I of the Constitution is only intended to protect and to promote this unit, which has its origins in a sphere which precedes law; article 6 does not refer to the personal relations between spouses [references]. Consequently it does not support any demand for the punishment of marital infidelity, nor of third parties who are indispensable participants. It need not be examined here whether different considerations might apply in respect of totally different attacks against the sexual integrity of a spouse (by threats, fraud, or force) if the general law should not provide adequate remedies for compensation.

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