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BGH WM 1999, 484 Bundesgerichtshof (third civil senate) III ZR 56/98
04 February 1999
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Tony Weir
Professor B.S. Markesinis


The claimant demands from the defendant, his sister, the return of investment shares...

The claimant had received these securities or corresponding equivalents from the father of the parties (from now on called the father) in about 1986. The father owned an account authority and a deposit authority respectively, which authorised him to dispose of securities. On the 3rd and 24th November 1994 the father - who died during the course of the present litigation - arranged, in agreement with the defendant, the transmission of the D shares from deposit in the claimant's name with the D Bank AG, L branch, to a deposit in the defendant's name with the B V; and transmission of the F shares from deposit in the claimant's name with the A GmbH in M to a deposit in the defendant's name - recently opened for this purpose - with the same company. The claimant claimed that the father had misused his authority for the claimant by these disposals, and that the defendant recognised this. Besides this, the transmission of the investment shares to the defendant - at a time when the claimant had been temporarily undergoing psychiatric treatment in hospital - only been on trust in order to protect the assets of the claimant from the hands of the social security authority. In any case, the defendant was under a duty to hand over on the grounds of unjustified enrichment. The defendant has denied that the securities transferred to her came from the claimant's assets; the securities had only been transmitted to the claimant from the father who had remained the "economic owner" of the deposit, in trust. Besides this, she had not known that the transmission of the securities took place from a deposit in the claimant's name. As she saw it it, they were gifts from her father from his own property. Finally, the father had made transfers of a similar order of magnitude to the claimant early in the year 1995, to match the gift to the defendant. The Landgericht allowed the claim but the Oberlandesgericht rejected it. The claimant pursues his claim in the appeal in law.


The appeal in law results in the quashing of the judgment under challenge and reference of the case back to the appeal court.




b) The appeal court considers the conditions of § 812 (1) sentence 1 of the BGB not to be present for the following reasons. The defendant referred to a - completed - gift by the father. This legal ground was not excluded just because it was not a question of the father's securities. It followed from § 523 (2) of the BGB that it was - just as with other transactions creating an obligation - not necessary for the donor to be the owner of the subject matter of the gift. The claimant had not proved the absence of this legal ground - his assertion that a gift had not been agreed.

These observations cannot support a denial that the conditions of § 812 (1) sentence 1 of the BGB were present.

aa) The starting point for the assessment in the enrichment law is that the defendant has obtained the securities (investment shares) - until then belonging to the claimant - at the claimant's cost, because the ownership in the securities passed to the defendant by the act of transmission effected by the father as the claimant's representative. Thus there is an advantage to the defendant's assets set directly against a disadvantage to the claimants' assets.

There is no legal ground for this passing of assets so far as concerns the direct relationship between the parties. Such a ground does not simply arise from the fact that the claimant had given to the father power of disposition over his deposit of securities. The existence of an account authority and a deposit authority respectively of the kind in question here - as given, for instance, for the purposes of administering assets - does not normally entitle the authorised agent to give away the assets and even less to appear himself as the donor in this connection. (A performance relationship between the claimant and the defendant - without a legal basis - which could simply be assumed if the father not only executed the transfer document to the defendant in the claimant's name but had represented the gift as a whole as one by the claimant is ruled out according to the facts which must be used as a basis for the appeal in law proceedings). Such a transaction by the authorised agent was thus contrary to duty if it was not covered by a concrete approval by the principal, and in itself not appropriate to create a ground for retention by the recipient in the sense of enrichment law. With regard to duties by which the authorised agent is bound in the internal relationship with the principal, there can also as a rule be no question of the principal having waived all his rights in relation to the asset concerned simply by the granting of such an authority.

bb) The matter would have to be considered in a different light if, as the defendant asserts, the claimant had exercised proprietorship in the investment shares in question only as a trustee for his father - as the "economic owner". The appeal court has not however made findings to this effect and it must be assumed in the claimant's favour in the proceedings in the appeal in law - simply having regard to the presumption in § 1006 (2) of the BGB - that he was the owner of the D and F share certificates without fiduciary commitments of that kind to his father.

cc) The intrusion into the claimant's legal position which was to be assumed from the present state of the case and which has led to enrichment of the defendant can only be regarded as approved by the legal order in the sense of being a final allocation of assets if and in so far as the gift of securities to the defendant has presented itself as a performance by the father to the defendant in the sense of the law on enrichment. Only then would it be necessary to take exclusively into account the relationship of the father to the defendant for a possible enrichment settlement (Bereicherungsausgleich) (see on the principle of priority of the performance condiction [references omitted]).

(1) The deliberate and purposive increase in the assets of others is to be understood as included in performance in the sense of § 812 (1) sentence 1 of the BGB. In this connection it is primarily a question of the purpose given to the transfer and thus firstly what purpose the participants have pursued according to their expressed intention. If the ideas of the participants do not agree, an objective method of consideration from the point of view of the recipient of the transfer is required (references omitted). The angles of protection of trust and division of risk are also to be considered here (reference omitted). It has been emphasised again and again in the case law of the Bundesgerichtshof - and that applies here as well - that any mechanical solution in the treatment in enrichment law of events in which more than two persons have participated is out of the question. Instead the peculiarities of the individual case must primarily be considered for a correct conclusion in enrichment law (reference omitted).

(2) The appeal court has not made sufficient findings on this point. It merely observes in general terms that the defendant's statement of case which referred to a completed gift by the father was not refuted and - in another connection - that the claimant had not proved "that the father appeared as an agent and that thus use was made of an authority and that this was recognisable for the defendant".

(a) Accordingly, a positive agreement of wills between the father and the defendant, for instance in the sense that the transfer of the securities to the defendant was a performance by the father (regardless of the fact that the securities were not the property of the father and he only possessed an account authority and a deposit authority respectively) has not been established. The defendant also does not assert anything of this kind; she has merely claimed that the father explained to her during her stay in L in November 1994, that he would for a start transfer securities to her by way of gift from his assets, and he had carried out this intention afterwards in that the securities which were the subject of the dispute had been transferred in her favour. Besides this, an agreement according to which the securities actually transferred to the defendant would be a present by the father would have exonerated the defendant under enrichment law in the relationship with the claimant at best if the father, in the context of his dispositions of the 3rd and 24th November 1994, had revealed to the defendant the conflict of his interests with those of the claimant in relation to the securities deposit in question, and had given to the defendant a comprehensible and verifiable basis for his entitlement nevertheless to give away the claimant's securities: the gift would thus, according to its nature, have come from his assets.

(b) For the transfer to be classified as a performance in the sense of enrichment law, when considered objectively from the point of view of the defendant as the recipient of the securities, it is not possible only to take account of the general declaration (according to the defendant's statement of case) by the father to the defendant that he wanted to give her securities from his assets. In this respect the individual events which led to the completion of the transfer of the securities to the defendant effected on the 3rd and 24th November 1994 are also of crucial importance. Suppose it were assumed - contrary to the claimant's statement of case - that the documents concerning the father's declarations are to be left out of consideration in this respect, on the basis of the defendant's assertion that she had not noticed that the father had a power of disposition over securities belonging to the claimant. The necessary overall assessment would in any case have to include the fact that (according to the claimant's statement of case, which must be assumed to be correct in the appeal in law proceedings - and the practice of banks argues in favour of the correctness of this) appropriate communications have reached the defendant in connection with the credit of the securities at her banks of deposit, from which it ought to have been inferred that the credit to her accounts had occurred at the expense of the security accounts. The claimant's view that the latter documents do not matter because they only proved knowledge by the defendant of the origin of the securities at a point in time when the gift had already been completed is not correct. Even if the communications to the defendant from her bank of deposit may not have formed part of the actual document transferring the securities to the defendant, they were of fundamental importance - possibly excluding a performance relationship between the father and the defendant in enrichment law - for the "recipient's point of view" of the defendant which was relevant in enrichment law and thus so far as concerned the classification in enrichment law of the transfers effected as a performance by the father.

If the defendant could simply have recognised from the overall context that it was a question of transfer of securities which were in the claimant's ownership, then he could at the same time at least have recognised the risk that the securities were not subject to the father's right of disposition as he pleased; and that therefore at first sight they were not part of his assets and consequently a transfer of the securities by the father without payment, even from the defendant's viewpoint, did not emanate from the father's assets and therefore also did not represent a "performance" by him in defendant's favour.

(3) In a situation in the sense last described, considerations of protection of trust do not contradict the assessment that the transfer of securities to the defendant does not appear as a performance by the father. In this respect the result can in the end be no different than for the case of a performance on instructions, in which in the cover (Deckungs-) relationship a legal ground is absent, and in the value (Valuta) relationship the performance has been effected without payment


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