Condictio ob rem

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The condictio ob rem (German: Zweckverfehlungskondiktion , non-classic condictio causa data causa non secuta or also condictio ob causam datorum ), actually condictio ob rem dati re non secuta , is perhaps the rarest claim to enrichment known to the German Civil Code . It is regulated in § 812 I 2, 2nd old BGB . According to this, a performance can be reclaimed if the purpose of a legal transaction (which has not become part of the business) is not fulfilled.

The provision has been difficult to use since its inception, as the purpose must be more than a motive, but less than the basis of the business. In some cases, a so-called basic legal agreement is required.

Legal nature

The wording already shows that the condictio ob rem is a performance condition. Section 815 of the German Civil Code (BGB) contains a separate condition lock for this claim. According to this, the reimbursement is excluded if the success intended with the service cannot occur and the service provider knew this or if the service provider prevented the success against good faith .

Sometimes it is assumed in the literature that the condictio ob rem is the basic case of the performance condition, since the condictio indebiti , in which solvendi causa is performed, is only a special case of the datio ob rem . However, there are no practical differences.

The lack of purpose condition is also seen as a legally regulated case of supplementary contract interpretation .

application

The condictio ob rem has been taken into account in the case law every now and then for the reversal of so-called unnamed benefits . In the meantime, however, § 313 BGB - disruption of the business basis - is viewed as more special.

Incidentally, based on its historical origin, it can be said that it is only applicable if the success intended with the service is not enforceable (so-called inducement cases). It will still be applicable in the so-called black sales cases: there, buyers and sellers make a pretense of concluding a purchase agreement at a lower price in order to save taxes, while they agree on the objective value of the property. Here the declared external sales contract - the simulated legal transaction - is null and void due to a lack of business will in accordance with Section 117 (1) BGB. In accordance with Section 117 II, the provisions that apply to these legal transactions apply to the intended contract behind it - the dissimulated legal transaction. Since the parties could not notarize the intended contract, it is void due to a formal violation according to §§ 311 b I S. 1, 125 S. 1. It can only be cured by releasing and registering in accordance with §§ 311 b I 2, 873, 925. Often the buyer pays the purchase price in spite of nullity in order to persuade the seller to dispose and register. This success is not actionable as the contract is void. If the seller refuses after receiving the service, the buyer cannot proceed according to § 812 I 1, 1st alt, so-called condictio indebiti , since the condition lock from § 814 applies: the buyer has performed with knowledge of his non-fault. The condictio ob rem then helps here .

A practical application of the condictio ob rem is also the so-called donation . There the giver turns an object to the recipient with a certain expectation, which is not fulfilled. If this purpose of the donation did not become part of the contract, but there was a corresponding agreement between the parties, the condictio ob rem may apply. An example is the donation of a company in the disappointed expectation that the recipient will continue this.

Examples from case law

  • BGH case law on the purchase of black goods for a service in the expectation of becoming a partner.
  • BGH jurisprudence regarding a non-marital partnership as an implied purpose agreement.

Legal consequence

As with the other enrichment claims, the scope of the claim is based on §§ 818 ff. BGB.

See also

Individual evidence

  1. ↑ Schwab in Munich Commentary on the BGB, 6th edition 2013, § 812 Rn. 373
  2. ↑ Wendehorst in Beck'scher Online Comment BGB, as of February 1, 2015, § 812 Rn. 84
  3. ^ BGH, judgment of November 10, 2003, Az. II ZR 250/01. ( BGH NJW 1980, 451 and NJW 2004, 512 ff.)
  4. ^ BGH, judgment of February 18, 2009, XII ZR 163/07. (BGH NJW- RR 2009, 1142, Rn. 24 ff)

literature

  • Karl Larenz , Claus-Wilhelm Canaris : Textbook of the law of obligations. Volume 2: Special Part. Half-volume 2nd 13th, completely rewritten edition. Beck, Munich 1993, ISBN 3-406-31484-8 .
  • Dieter Reuter, Michael Martinek : Unjust enrichment (= manual of the law of obligations. Vol. 4). Mohr, Tübingen 1983, ISBN 3-16-644711-3 .
  • Günter Christian Schwarz, Manfred Wandt: Statutory Obligations. Tort law - Damage law - Law of enrichment - GoA. A textbook for studies and exams. 2nd, revised edition. Vahlen, Munich 2006, ISBN 3-8006-3319-1 .