Facts:

The claimant limited company (GmbH) in liquidation demands from the defendant bank the reimbursement of sums from three cheques debited to its account. The following facts are the basis of this:

The claimant, which until its liquidation in 1994 operated as a building contractor, opened an account with the defendant on the 29th April 1992 for a building project. Only the witness K and the architect R acting together had control over this "special building account". At the time of the opening of the account, K was a shareholder and director of the claimant, after he had acquired the company shares of his fellow shareholder at that time (now the claimant's liquidator), who had thereupon given up his director's office. By a contract of the 18th September 1992 they both cancelled the contract for the transfer of shares, upon which the claimant's liquidator on the recall of K was again appointed as its director.

On the 7th May 1992, the architect R made out a cheque for 193,000 DM in the claimant's name, signed only by him, in favour of the notary Re, which the defendant cashed. The amount of the chegue was to pay off, via the notary's client account, a debt by the claimant of an equal amount for the remainder of the price resulting from a land transaction.

On the 1st March 1993 the witness K made out an undated cheque for 50,000 DM in the claimant's name, which the defendant cashed only after a written permission given by R. On the same day they both made out together a third cheque for 550,000 DM in the claimant's name which was likewise cashed by the defendant in spite of no date being given on it. At this point in time the recall of K as the claimant's director had not been entered in the commercial register.

The claimant claims primarily: the cheques for 50,000 DM and 550,000 DM should not have been cashed by the defendant and the "special building account" should not have been debited. The witness K had not identified himself sufficiently as director on the opening of the account. His removal as director was already known to (or could simply have been recognised by) the defendant on cashing of the second and third cheques. In relation to the first cheque for 193,000 DM there was not even any effective declaration of instructions, as it had only been issued by the architect R, contrary to the joint agency rules, and it had not been approved by K.

The defendant sets off against the claimant's claim to repayment of the amount of the cheque of 193,000 DM a counterclaim for unjustified enrichment and gives as its reason, amongst other things: by the payment initiated by R alone in favour of the notary Re the remainder of the claimant's purchase price debt from the land purchase contract on which it was based had been paid off.

The Landgericht allowed the claim (aimed at replacement of the part sums of 10,000 DM each from the cheques for 193,000 DM and 50,000 DM as well as a part sum of 50,000 DM from the cheque for 550,000 DM) in relation to the first cheque for 193,000 DM and rejected it in other respects. After the claimant had widened its claim in relation to the first cheque in the appeal proceedings to 193,000 DM plus interest, the appeal court rejected the claim altogether. The claimant pursues its claim further by the appeal in law.

Reasons:

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II.

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3. The appeal in law correctly objects however to the fact that the appeal court has considered the claim which the claimant has under §§ 667 and 675 (1) of the BGB to crediting or repayment of the first cheque sum of 193,000 DM as extinguished on the basis of the set off declaration of the defendant. This view of the appeal court is based on the incorrect idea that a bank which acted on the basis of an instruction given only by a representative authorised by a joint agency has a claim based on enrichment against the holder of the account, if he actually owed the sum paid and the recipient of the payment did not know the lack of validity. A settlement in enrichment law must be carried out under these circumstances, in the absence of attributability of the ineffective declaration of instructions exclusively in the relationship between the bank and the recipient of the payment.

a) Under the principles of enrichment law, a payment by a bank can only be attributed to the account holder for whose account it is to be effected if an effective declaration of instructions is present. If this is absent, or it is void on certain grounds, the account holder concerned has given no cause for the impression that the payment was his performance. As a consequence of this, contrary to what the appeal court thought, the payment in the value (Valuta) relationship between the account holder and the recipient of the transfer cannot have the effect of paying off in the sense of § 362 of the BGB. As the bank does not count as a third party in the sense of § 267 (1) of the BGB, but acts expressly with reference to an instruction of the debtor, the settlement under enrichment law must take place by way of a condiction without a performance (§ 812 (1) sentence 1 alternative 2 of the BGB) between the bank and the recipient of the payment. Accordingly the Bundesgerichtshof has found a claim by the bank for enrichment against the recipient of the transfer in the case of legal incapacity of the transferor (reference omitted), on the cashing of a cheque which is not signed by the drawer (reference omitted), and in the case of forged or falsified instructions for transfer (references omitted).

b) The position is just the same in cases in which the instructions and determination as to repayment or purpose have been given by a representative without the authority of the account holder. As declarations of will without authority cannot be attributed to the account holder according to the assessment in § 177 of the BGB, and the lack of validity could have been recognised by the bank on exercising the necessary care in the affairs of life, there is no ground from the point of view of attributability to which unjustified enrichment could attach in the cover (Deckungs) relationship between the account holder and the bank (references omitted).

In this connection it does not make any difference whether a single representative without authority or - as in the present case - only one of several representatives authorised under a joint agency has acted for the account holder. This is because the purpose of the rules about joint authority is precisely that the person represented can in principle only be obliged and entitled by matching declarations of will of all the representatives appointed by statute or by legal transaction. The necessary evaluation basis for an attribution of the declaration giving instructions, which was made without authority and therefore ineffective, is consequently lacking here (references omitted).

The legal situation therefore differs fundamentally from the cases in which the account holder provided an attributable cause for the payment, even though the instructions which were at first effectively communicated by him were carried out in spite of timeous revocation (references omitted) or an excessive transfer was mistakenly undertaken (reference omitted).

c) Admittedly the Bundesgerichtshof has repeatedly assumed in obiter dicta that the enrichment settlement (Bereicherungsausgleich) must exceptionally occur, even where instructions are absent from the outset in the cover relationship between the account holder and the bank, if the recipient of the transfer did not know of the absence of instructions and from his point of view the payment appeared in accordance with §§ 133 and 157 of the BGB (by analogy) as a performance of the transferor in the sense of § 812 (1) sentence 1 of the BGB (references omitted). However it corresponds to a general recognition of the doctrine of apparent rights that the other party to the contract who acts in good faith cannot be protected in the absence of attributability of the appearance of a right. The so-called "recipient's viewpoint" of the recipient of the payment cannot therefore replace the absence of a determination as to repayment and purpose by the account holder (references omitted). Besides this, the recipient of the transfer who places confidence in effective instructions and determination as to repayment made by the debtor is in general sufficiently protected by the rules in § 818 (3) of the BGB from the legal consequences of a direct condiction of the bank (references omitted).

d) The claimant is also not violating the principle of good faith by claiming from the defendant the recrediting or the repayment of the first cheque sum of 193,000 DM. The defendant (who is in this respect under a duty of explanation and proof) has not put forward any indication at the previous instances of behaviour by the claimant which was contradictory or otherwise contrary to good faith. Moreover as the defendant could have had the unpaid remainder of the purchase price demand by the sellers of the land transferred and could have set it off against the claim by the claimant under §§ 667 and 675 (1) of the BGB, especially high requirements are to be imposed for a finding of conduct which is in abuse of rights and limited to convincing cases. The defendant has also in the oral proceedings considered it to be out of the question that these requirements are fulfilled here and could hinder the claimant in the pursuit of its claim by court action.

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