The claimants the tenant of a flat in a house in B, in which the landlords had had comprehensive renovation and building works carried out. The third defendant was one of the landlords of these flats, who were combined into a civil law company. Because of injuries which she had suffered through stepping on sheets of wood which were laid in the cellar of this house over a ditch for a pipe, the claimant demanded payment of compensation from the third defendant as joint a debtor along with the first defendant (the clerk of works) and the second defendant (the building firm). The third defendant raised a counterclaim, by which he demanded from the claimant the repayment of 5000 DM paid to her by his liability insurer. The Landgericht allowed the claim in part, and rejected the remainder of it as well as the counterclaim. The Oberlandesgericht rejected the claim altogether, and on the counterclaim ordered the claimant to pay 5000 DM to the third defendant. The Senate accepted the claimant's appeal in law in so far as she had been ordered to make payment on the counterclaim. In other respects, it did not accept the appeal in law.
According to the view of the appeal court, the claimant is not entitled to a claim for compensation against the defendant because she had not proved that her injuries suffered in the fall were based on inadequate safety of the pipe ditch.
On the other hand, the appeal court considers the counterclaim to be well founded. The third defendant could demand repayment of the 5000 DM paid for him by the liability insurance, because the claimant had obtained this sum without a legal ground. The payment was an insurance advance in respect of the possible duty of the third defendant and the other landlords to pay.
These observations do not stand up to legal examination.
1. There is admittedly no objection to the view of the appeal court that the claimant was under a duty to refund the 5000 DM received from the view point of unjustified enrichment. As a result of the decision of non-acceptance by this Senate regarding the claim, it is now established that the claimant did not acquire a claim for compensation against the third defendant and the other landlords from the accident of the 6th July 1993. The claimant has therefore obtained the sum by way of advance paid in respect of such a possible claim from the third defendant's liability insurer without a legal ground. It is true that the appeal court has not been able to establish the absence of a legal ground for the payment. It has instead merely considered the factual prerequisites for a violation by the defendants of their duty of care owed to the public in general (Verkehrssicherungspflicht) not to be proved. But, contrary to the view of the appeal in law, that does not mean that what has been paid here (on the basis that the third defendant had not produced proof for the absence of a duty to pay) could not be demanded back. This is because, according to the unchallenged finding of the appeal court, the 5000 DM had been paid to the claimant as an advance in respect of a possible duty to pay by the third defendant. In such a case, the recipient of the advance - and here, therefore, the claimant - has to prove that he is entitled to expect the money (references omitted). The claimant has not brought this proof.
2. The appeal court has on the other hand, on the basis of the findings made so far, incorrectly assumed that the third defendant could claim refund to himself.
a) The claim for enrichment directed against the claimant under § 812 (1) of the BGB (performance condiction) does not attach to the third defendant but to his liability insurer, who has made payment as a third party (§ 267 of the BGB) in relation to another's indebtedness in fulfilment of its duty to exempt the third defendant. In the case of a third party payment of this kind by a liability insurer, if - as here - the debt to be paid off did not exist, the paying insurer and not the policy holder acquires the claim to an enrichment settlement (Bereicherungsausgleich) against the apparent creditor (reference omitted).
b) It is true that the third defendant would nevertheless be authorised to claim the right of another if either (1) he had been empowered to conduct proceedings by his liability insurer and had an interest of his own worthy of legal protection in making the demand in the counterclaim or (2) this had been transferred to him by his insurer in accordance with his (disputed) assertion at first instance. It is not, however, possible to proceed on this basis. As to (1), the third defendant has argued nothing, and as to (2) the appeal court has so far made no findings.
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