Enrichment Law (Germany)

The enrichment law is a branch of the German civil law , which has the rescission right of gratuitous transfers of assets to the object. Unjustified enrichment is regulated in Sections 812 to 822 of the German Civil Code (BGB) as a legal obligation . The right to enrichment is opposed to the possibility of reversing legal transactions via the rescission regulations of §§ 346 ff. BGB, whereby the fulfilled primary performance obligations are converted into a restitution obligation and do not constitute a legal obligation.

The right to enrichment contains a number of claims, which are referred to as conditions according to Roman law. They are available to anyone at whose expense someone else has obtained an asset worthwhile for no legal reason and allow him to compensate for this unjustified acquisition of assets. This pecuniary advantage to be compensated can be based on a performance, i.e. through a conscious and purposeful increase in third-party assets, or in any other way without the will but at the expense of the enrichment creditor, for example through an interference by the debtor in a foreign law. Standard cases of pecuniary advantage are the acquisition of ownership and possession of an item, possession and usability, incorrect entries in the land register, release from a liability or the use of a service.

History of origin

The German law of enrichment is rooted in Roman law . It developed from the condictio , a claim to surrender for unjust enrichment, which was already asserted in the early Republican times by way of the legislative procedure . The condictio, for its part, goes back to the Roman legal institutions of the mutuum (the subject matter were transfer of ownership) and the stipulatio (the subject matter of the proceedings were promises of performance ). The legally recorded possibility of transferring material assets consequently led to the fact that several types of conditions had to be developed in order to be able to reverse them; the most common was the condictio indebiti . The claim to surrender was aimed at reclaiming payments by means of which a debt that did not actually exist should be paid off.

According to the Justinian legislation, contained in the later so-called Corpus iuris civilis , the reputation of the condictio goes back to a "law of equity" formulated during the Roman Republic and then more precisely defined at the time of the imperial era . From this, late Roman law developed a subsidiary condictio sine causa (generalis) , which in the subsequent period threatened to displace the well-defined individual facts in the long term and drew its legitimation from a Pomponius dictum:

"Iure naturae aequum est, neminem cum alterius detrimento et iniuria fieri locupletiorem."

"In natural law it is just and equitable that no one becomes richer for another under harm and injustice."

- Digest 50, 17.

The medieval glossators and the representatives of the theory of natural law were later unable to give the law of conditionality a clear dogmatic profile, which is why individual decisions began to shape this area of ​​law. In the 19th century, the jurisprudence around Friedrich Carl von Savigny endeavored to base the right to enrichment on a general legal principle. Savigny derived the approach to this from the knowledge of the philosopher Immanuel Kant , who called for the "gratuitous enrichment of the other from our wealth" to be stopped. Savigny's influence led to a further development of the chosen approach and thus created the basis for a pandectistic doctrine of the law of enrichment.

The fathers of law of the BGB took up Savigny's thread and, in the light of the pandectistic approaches of the historical school of law, attempted to abstractly describe the unjust enrichment. The focus of today's German law on enrichment is § 812 Paragraph 1 BGB: This obliges those who obtain something without legal reason through the service of another or in any other way to surrender.

Until Fritz Schulz's so-called first change in the law on enrichment , legal doctrine was still in the pandectistic tradition of Savigny even after the introduction of the BGB. With the conceptual development of the "intervention condition", Schulz succeeded in liberating himself from Roman legal thinking, because he shifted the accent from the lack of legal grounds for the shifting of assets to the illegality of the action , which created a higher degree of abstraction.

In the middle of the 20th century, the second turning point in enrichment law took place: In 1934, Walter Wilburg opened the eyes of science to the fundamental differences between performance and non-performance conditions and, in turning away from Savigny's theory of conditions, even dispensed with the approach that all cases of enrichment should be standardized Principle to want to lead back. Ernst von Caemmerer supported Wilburg's theses in 1954 and specified his approach of seeing the non-performance condition as an independent dogmatic institute . He thus paved the way for the so-called separation doctrine that is prevalent today.

Due to the dogmatic separation between performance and non-performance conditions, the long-smoldering danger of viewing the right to enrichment as a “superordinate law of equity” could be averted. A special reason for this view is § 816 BGB, which makes it clear that the right to enrichment can at best carry out the evaluations that are formulated in other parts of the law. Its wording of the law does not regulate in this respect, rather it presupposes which dispositions of an unauthorized person are effective. The fact that borderline cases remain conceivable that make a distinction in the sense of the separation theory more difficult is shown by the flight case decided by the Federal Court of Justice in 1971 .

Performance conditions

The law provides several conditions with which a service can be reclaimed.

General performance conditions ( condictio indebiti ), § 812 para. 1 sentence 1 alt. 1 BGB

The basic fact of the performance condition is in § 812 Abs. 1 S. 1 Alt. 1 BGB and is derived from the Roman law condictio indebiti . The claimant can then challenge an item of enrichment that has been provided to the opposing party for no legal reason. With this standard alternative, the legal reason for the benefit is missing from the start. It records benefits “solvendi causa” that serve to repay a liability that actually does not exist (payment for a non-debt). According to the case law of the BGH, performance on a debt from a pending ineffective transaction and unsuccessful performance on a debt that has not been pleaded is sufficient .

To clarify the features of the performance condition, the following should be stated at this point:

Object of enrichment ("something acquired")

The something obtained within the meaning of Section 812 (1) can be any pecuniary advantage, such as ownership , possession , possible uses of an object, incorrect land register entries , liens or expectant rights . Furthermore, personal rights such as claims and rights of use or advantageous legal positions such as the release from liabilities come into consideration. A claim to enrichment itself, the condition of the condition, can also be conditioned. The object of enrichment is thus determined based on the Roman law forerunners of German enrichment law based on the object: specific legal positions are conditional, not their financial equivalent.

Conceptually, a counter-view does not require an object orientation, but recognizes in the something achieved pure asset orientation, asset growth in the case of the opposing party . This view is based on the air travel case of the Federal Court of Justice , a minor debtor for enrichment had stolen a flight and the BGH assessed the savings in the cost of a flight ticket as having been achieved . The prevailing view objects against this view that it is incompatible with the legal system, because the question of the value of the asset only arises at the level of legal consequences.

Performance of the obligee

Achievement is the conscious and purposeful increase of the assets of others. A performance is determined by the will of the party. If the party's will is dissentive, it will be judged from the recipient's point of view.

The determination of the purpose of the service is important if more than two people are involved in the enrichment settlement, as the reversal generally takes place within the respective service relationships.

Without legal reason (lack of legal reason)

A condictio indebiti presupposes a failed performance purpose, which is why, in the end, “without legal reason” was provided.

The performance of an obligation is zweckverfehlt if this does not exist, for example, a purchase contract as the legal basis for the transfer of ownership of a thing . Is this ineffective, such lack of capacity of a party, the transfer of ownership takes place wrongly, as a trifling purchase agreement does not trigger a transfer of ownership claim to the goods. The transfer then has no fulfillment effect . There is also no purchase price claim due to the lack of a contractual basis. The seller therefore has an interest in reclaiming the purchased item. The seller cannot base a claim for surrender on his ownership of the purchased item, because he lost it through the transfer of ownership to the buyer; On the other hand, the ineffective underlying purchase contract does not affect the transfer of ownership, because German law follows the principle of separation and abstraction and divides the legal transactions. The buyer can therefore challenge the thing via the general performance conditions: By assigning the seller in order to fulfill his alleged obligation, he provides a service to his buyer. However, the buyer is not entitled to this service as the purchase contract is void. The seller has performed without legal reason.

The central function of the general performance conditions is the reversal of failed contracts.

Exclusion of the condition

The law excludes the performance condition for reasons of evaluation in three cases:

The first case is the performance that is effected despite knowledge of a lack of legal obligation according to § 814 Alt. 1 BGB. The regulation is an expression of the prohibition of contradicting behavior : whoever knows that he is providing a service without a legal basis, behaves inconsistently if he later demands it back because it is not owed. If someone doubts a legal obligation to perform, for example because he does not know whether a contract exists, he must perform with reservations in order not to run the risk of a later condition on § 814 Alt. 1 BGB fails.

According to § 814 Alt. 2 BGB, the performance condition is excluded if the performance corresponds to a moral obligation or a consideration to be taken of decency. This is the case, for example, when someone pays alimony to a relative because he fails to recognize that he is not subject to any maintenance obligation. § 814 Alt. 2 BGB also applies in everyday life to the payment of tips. A condition is also excluded here.

§ 817 sentence 2 BGB blocks the return request if the service violates laws or morality . The regulation is predominantly viewed as a legal refusal of legal protection: Anyone who moves outside of the legal system through disapproved action cannot be protected by it. The regulation, which systematically only refers to the condition according to § 817 sentence 1 BGB, applies to all performance conditions. It expresses an overriding principle of the BGB: No one deserves legal protection if they act outside the legal system. The cases of usurious loans being granted are of practical importance. The same applies to undeclared work .

Condictio ob causam finitam , § 812 para. 1 sentence 2 alt. 1 BGB

→ Main article : Condictio ob causam finitam

The in § 812 Abs. 1 S. 2 Alt. 1 BGB regulated claim of the condictio ob causam finitam recorded, as well as the condictio indebiti , cases of an unlawful performance. In contrast to it, the initially existing legal reason for the performance is no longer applicable.

The scope of application of the condictio ob causam finitam is narrow, because numerous special regulations take precedence over the subsequent discontinuation of a legal basis for the condition, such as withdrawal and revocation regulations . However, there is room for the occurrence of dissolving conditions of time limit , termination or other types of contract cancellation . The revocation of a gift or the elimination of an insured event, for example because the stolen item reappears, are also subject to the condictio ob causam finitam . The challenge is not affected because the challenge the transaction retroactively ( lat . Ex tunc ) destroyed.

The condictio ob causam finitam is excluded if the service violates laws or morality . However, § 814 BGB does not apply to this type of condition either directly or accordingly: Since there was a legal reason at the time of the service, both alternatives of § 814 BGB cannot be fulfilled in cases of the condictio ob causam finitam .

Condictio ob rem , § 812 para. 1 sentence 2 alt. 2 BGB

→ Main articles : Condictio ob rem  and Condictio causa data non secuta

§ 812 Paragraph 1 Sentence 2 Alt 2 BGB standardizes the condition due to lack of purpose ( condictio causa data non secuta ). The legal basis of the condition is the non-occurrence of the success intended with the service according to the content of the transaction. Apart from the mere expectations of the performer or the non-fulfillment of an obligation, two groups of cases are recorded: on the one hand, the "performance without obligation", on the other hand, the "performance for a success that is beyond fulfillment".

Example cases of “performance without obligation” can be cases of non-owed advance performance: Someone pays a deposit to get the recipient of the service to conclude the contract. This can be demanded if the contract is not concluded. The other party must have been aware of this purpose and approved it. Similarly, performance intentions are intended to motivate certain behavior, such as refraining from filing a criminal complaint .

The applicability of the claim from § 812 Paragraph 1 Sentence 2 Alt. 2 BGB in the second case group, the “achievement to a success beyond fulfillment”. An obligation was to be fulfilled and was fulfilled, but the intended success went beyond that. Its non-occurrence justifies - if one follows the view - the condictio ob rem . This is contradicted by the fact that the applicability of the enrichment claim would circumvent more specific regulations, such as the disruption of the business basis according to § 313 BGB. In particular, this applies to the case group of “disappointed remuneration expectations”, which was previously mostly also subsumed under the condictio ob rem , which was not provided in response to an obligation (one's own or a third party).

The misappropriation condition is according to § 815 Alt. 1 BGB excluded, if the realization of the purpose is impossible from the beginning and the service provider knows this at the time of the service. § 815 Alt. 2 BGB excludes the condition if the service provider prevents the purpose from happening in good faith. These reasons for exclusion are based on the consideration that a condition should not be possible in the case of contradicting behavior. Furthermore, the condition according to § 817 sentence 2 BGB is excluded if there is a violation of the law or morality.

§ 813 BGB

Section 813 (1) sentence 1 BGB extends the condictio indebiti (Section 812 (1) sentence 1, alt. 1 BGB) in the event that the guilt exists but its enforceability isopposedby a permanent objection , such as the objection of malice , the objection of unlawful act and that of unfaithfulness. The interests are comparable to those that exist if the service is provided without a legal reason why it should be conditional.

Section 813 (1) sentence 2 of the German Civil Code (BGB) regulates an exceptional case, the objection of statute of limitations : If a voluntary performance on a statute-barred claim could be reclaimed, this would impair the function of the statutory purpose of the statute of limitations, the creation of legal peace. A performance should not be allowed to be reclaimed here.

In accordance with Section 813 (2) of the German Civil Code (BGB), reclaiming is still excluded if the claimant pays a liability that is not yet due . The aim is to prevent the obligee from condensing a performance that he would have to return after the due date. Finally, the reasons for exclusion of §§ 814 and 817 sentence 2 BGB apply to the condition § 813 BGB.

Condictio ob turpem vel iniustam causam , § 817 S. 1 BGB

→ Main article : Condictio ob turpem vel iniustam causam

Section 817 sentence 1 of the German Civil Code (BGB) grants the right to reclaim a service if its recipient violates a legal prohibition or good morals by accepting it. In principle, the standard has hardly any scope of application, since solvendi causa services are regularly already covered by the condictio indebiti. However, a basic transaction remains valid, for example, so that the charge of a violation of the law or morality cannot be made if the suppliersurrenders the thingin the event of blackmail ; a reproach cannot affect him, only the recipient. The moral ( § 138 BGB) or the norm violation ( § 134 BGB) by both parties leads to the ineffectiveness of the obligatory transaction .

The claim from § 817 sentence 1 BGB has independent significance in addition to the aforementioned case if the condictio indebiti is excluded, for example, by § 814 BGB, because the provider knew that there was no liability. The same applies in the event that the condictio ob rem fails because either the agreed success has occurred or one of the reasons for exclusion of § 815 BGB applies.

Exclusion here is § 817 sentence 2 BGB. It is controversial whether knowledge or at least grossly negligent ignorance of the legal disapproval of the action is required at the subjective level. The case law requires this. Parts of the literature, on the other hand, allow a mere objective violation to be sufficient, since the subjective side of those involved is not important for the purpose of the norm.

Non-performance conditions

In contrast to the performance condition, which reverses a shift in assets caused by performance , the claimant pursues with the non- performance condition the recovery of something otherwise obtained at his own expense. The main application is the intervention condition, in which the enriched person has obtained something through his own action ("intervention"). The right to enrichment knows several non-performance conditions.

General non-performance condition, § 812 para. 1 sentence 1 alt. 2 BGB

The general non-performance condition, like the performance condition, is linked to the fact that the opposing party has “obtained something without legal reason”. This is the case when it is enriched with an advantage that is legally assigned to the claimant. An allocation regulation contains, for example, § 903 BGB, which awards the owner of a thing its value, the uses and the other benefits of use . In copyright law , the author is assigned the right to commercial exploitation of his work.

The enrichment must have taken place “at the expense” of the claimant: an element of the offense which, according to prevailing opinion, is only of importance for the non-performance condition and defines both the creditors and the debtors of the enrichment claim. In order to limit the group of potential debtors, the case law relies on the immediacy of the profitable and loss-making event, which is missing if an interim acquisition is involved. “At the expense” is particularly important in the condition of intervention, as it is often not clear who will gain from an intervention that is due to another. The cost of an intervention is judged on the basis of economic and legal assessments in each individual case.

The general non-performance condition knows three manifestations: the intervention, the recourse and the use condition (also: expenditure condition).

Engagement condition

According to some authors, the enrichment can be demanded by means of interference conditions, which the debtor gains by interfering with the assignment content of a foreign law, provided that it contradicts the statutory assignment of goods, whereby not every unlawful interference is recorded. In contrast, the illegality theory advocated by other authors only regards illegal interventions as a matter of fact.

Intervention objects

The right of ownership gives the owner comprehensive legal power over an item, from which the right to sole use follows. If someone else derives improper advantages from the use or consumption of the item, there is an interference with the rights of the owner. Example: Burning other people's firewood. The realization of a debtor's property in the foreclosure also constitutes an encroachment on ownership. The owner concerned can demand the proceeds of the realization by means of intervention conditions, provided that the other conditions are met.

The content of intellectual property rights , such as copyrights and patent rights , includes the right to commercialize the right. For example, someone infringes the copyright of the photographer who uses an image produced by him; if there is no license , this happens without legal grounds. The same applies if someone infringes a third-party patent or utility model .

The general personal right has several characteristics that have an attributional content, such as the right to one's own image according to Section 22 of the Art Copyright Act . Anyone who publishes someone else's image without his or her permission or without legal permission intervenes without legal grounds. The naming right gives the bearer the right to use the name.

Intervention in this sense is also the presumption of an advantageous legal position, for example the entry as the owner of a domain , without being entitled to do so. The same applies to land register entries and documents . The right to the established and exercised commercial enterprise , which is recognized in tort law, does not have its own allocation content , since it does not result in any legal positions that a third party can presume.

Legal groundlessness of the interference

An interference takes place without legal grounds if it is not approved by the law. Legal approval exists in the case of an acquisition in good faith , so that a condition of intervention against the acquirer in good faith is fundamentally not possible. In contrast, the legal acquisition of property through combination , mixing or processing does not represent a legal reason , as § 951 BGB expressly provides for an enrichment compensation in such cases.

Usage condition (expense condition)

The usage condition applies if expenses are incurred on a third-party item without a service being available. If you paint someone else's house with your own paint in ignorance, you willingly give away a property (paint, brush) that will benefit a third party. There is no doubt that one can speak of an expenditure. However, the person consuming the expenditure lacks the will to perform for the third party, so that a claim based on non-performance conditions comes into question.

The competition with other claims only gives the expenditure condition a limited scope: as the unauthorized owner of an item, there is an owner-owner relationship between the person who expends and the owner , which primarily regulates the reimbursement of expenses. The agency without authority takes precedence over the law of unjust enrichment. If someone makes expenses on someone else's thing, which they do not illegally own and which they consider to be their own, the expenditure condition applies.

When determining the scope of the claim, the problem often arises with the expenditure condition that the enriched person has no interest in the enrichment, but rather that it appears to him as imposed. If the subject of enrichment can be released as obtained, it can be released in kind. The situation is different if that doesn't work, as in the case of house painting described above. In such cases, the enriched person has to pay compensation in accordance with Section 818 (2) BGB . In the case of an imposed enrichment, however, this would be inappropriate, since it would be ignored that the opponent of the enrichment claim has no interest in the enrichment. Therefore, according to the general opinion, there is no obligation to pay compensation. There is only disagreement about the dogmatic way in which this can be achieved.

Recourse condition

The recourse condition is also a subsidiary form of condition. Priority is given to the legal transfer of claims , assignment , management without engagement and compensation obligations among joint and several debtors in accordance with Section 426 of the German Civil Code.

The recourse condition covers cases in which someone is released from his or her own liability as a result of an action taken by the claimant. This is particularly true if the customer consciously fulfills a third-party obligation. The fulfilling party can demand compensation for this.

It is controversial whether the recourse condition can also be considered in the case of erroneous payments on someone else's debt, for example if someone pays medical treatment costs for another on the false assumption that they are obliged to do so. The dispute is based on the question of whether it can be permissible to change a repayment provision for a service retrospectively, i.e. to declare afterwards that it was not on one's own but on someone else's debt. On the one hand we consider it "cheap". On the other hand, it is countered by the fact that the erroneous performer is making the settlement of the third-party debt more difficult through his interference and thereby possibly worsening the debtor's position. In this way, the debtor can, if necessary, raise an objection against the obligee which he cannot raise against the erroneous performer. To solve problems, § 404 BGB (right of assignment) is regularly applied analogously. Objections to the previous creditor can therefore be raised against the new creditor. § 406 BGB also applies analogously .

Disposal for payment from an unauthorized person, Section 816 (1) sentence 1 BGB

In principle, only those who hold a right can dispose of it. However, the law makes some exceptions from considerations of traffic protection. A significant legal case is the purchase in good faith from the unauthorized person , which occurs, for example, when someone from a loan agreement holds possession of an item and sells it to a third party without consulting the owner. If the seller gives the third party the impression that he is the owner of the item and the third party trusts it, then the third party acquires property in good faith in accordance with § 932 , § 933 or § 934 BGB. The lack of authorization of the seller does not prevent this, since the law gives the protection of the buyer priority over the protection of the previous owner in these cases. Because of this protection, the owner cannot take action against the buyer in good faith, not even with regard to enrichment law. However, he is entitled to claims against the unauthorized seller under Section 816 (1) sentence 1 BGB. The prevailing view classifies the claim as a special case of an encroachment condition that enables the former right holder to demand from the person who has the right what the person has obtained unjustifiably through the disposition.

Section 816 (1) sentence 1 of the German Civil Code (BGB) requires that the unauthorized person has made a provision against payment, which includes the cancellation, transfer, encumbrance or changes to the content of a right, for example through transfer of ownership or assignment. No rulings are acts of sovereignty, as they do not constitute a legal transaction. Real acts, such as the transfer of ownership to a subtenant, are also not dispositions. The core of the non-authorization is the lack of power of disposal, of which effective use must have been made in accordance with Section 816 (1) sentence 1 BGB. The person entitled can cure the lack of power of disposal in accordance with Section 185 of the German Civil Code (BGB) through approval and thus bring about the effectiveness of the legal transaction.

What is disputed is what is to be regarded as an “advantage gained”. The jurisprudence and parts of the teaching see the proceeds of the disposition in the “advantage”. Others do not aim at the proceeds, but at the exemption from the obligation to transfer ownership obtained through the disposition. Since this cannot be surrendered in kind, the seller owes compensation for the value of the object of disposal.

Free disposal of an unauthorized person, § 816 Paragraph 1 Sentence 2 BGB

The claim from Section 816 (1) sentence 2 BGB follows on from Section 816 (1) sentence 1 BGB and is relevant if the unauthorized person's disposal is free of charge, i.e. the purchaser does not have to provide any consideration. In this case, a claim under Section 816, Paragraph 1, Sentence 1 of the German Civil Code (BGB) is in vain, as the seller is not enriched by the proceeds from the sale. In order to protect those whose rights are encroached upon by the disposition, Section 816 (1) sentence 2 BGB therefore enables them to demand the surrender of the enrichment item from the person who has benefited from the free disposition. Although he has legitimately acquired the asset, the law considers this acquisition to be less worthy of protection, as the purchaser did not spend anything to obtain the asset.

The weaknesses of the unpaid acquisition become evident in the purpose of the norm. § 816 para. 1 sentence 2 BGB corrected namely of debt level in rem rules on Acquisition from power integrity. The correction is successful because in the factual context of § § 892 f. (public belief in the land register), § § 932 ff. (acquisition of movable property in good faith), § 1138 (public belief in the land register for real estate liens) and § 1207 (pledging by unauthorized persons) does not depend on whether the honest person is responsible for his acquisition Has made a "sacrifice" in return . Those who lose a right should ultimately be protected more strongly than the free purchaser. The problem is still the case that the free purchaser has given the thing away, because by virtue of honesty he has property law as the beneficiary and Section 816 (1) sentence 2 BGB refuses to perform. As a corrective in these cases, § 822 BGB comes into consideration, through which the "second donee" can be demanded.

It is controversial whether § 816, Paragraph 1, Sentence 2 can be applied analogously to cases in which the purchaser does not obtain the enrichment item free of charge but without legal grounds. In the example of the acquisition in good faith, this is the case if the contract between the unauthorized seller and the acquirer in good faith is ineffective, for example because the acquirer is legally incapable of doing so . The question of the equality of unlawful = free of charge was first raised by the Reichsgericht . The Federal Court affirmed in these cases, an analogous application of the claim under § 816 para 1 sentence 2 BGB. The purchaser is not required because of the invalid contract to provide anything in return, he therefore no more worthy of protection is like the one that the cause of obtained free of charge in advance. Therefore, the norm can be applied to the acquisition without legal grounds, even if the acquirer has actually made a "property sacrifice". As a result, the previous beneficiary can demand the enrichment item directly from the bona fide third party. This line of argument is often rejected in science and the analogous application is rejected: In contrast to the unpaid employee, the legally unlawful employee has regularly provided a service. He can indeed challenge this by way of a performance condition from the unauthorized person, but bears his risk of insolvency and must accept all objections of § 404 BGB against him that the unauthorized person had against the former entitled person. This is not justified. Therefore, only the condition of the condition according to § 816 para. 1 sentence 1 BGB against the disposer is open to the former entitled person.

Service to an unauthorized person, Section 816 (2) BGB

The claim from § 816 Abs. 2 BGB represents a special intervention condition. It protects the interests of the owner of a claim if a third party accepts the owed performance in his place and the debtor is thereby released from his obligation to perform. In principle, the debtor has to pay to his creditor, since a performance to a third party has no fulfillment effect ( § 362 BGB) and therefore does not extinguish the debt. The law makes exceptions to this principle in several places in favor of the debtor for reasons of traffic protection. Such is the case, for example, in the case of assignment : If a creditor assigns his claim to a third party, who thereby becomes a new creditor, a performance by the debtor to the previous creditor according to § 407 BGB has a discharging effect despite the change of creditor if the debtor does not request the assignment White. This provision protects the debtor's confidence that he remains committed to his former creditor. However, since the performance is not due to the previous but to the current obligee, the latter can demand the surrender of this performance using the claim from Section 816 (2) BGB.

Other cases that can lead to the applicability of Section 816 (2) BGB are governed by Sections 793 , 808 , 851 , 893 and 2367 BGB. According to the prevailing opinion, the entitled person can also approve the performance to the unauthorized person and thereby open up the claim from § 816 Paragraph 2 BGB.

Free disposal of an entitled person, § 822 BGB

Section 822 of the German Civil Code (BGB) is used like Section 816 (1) sentence 2 of the German Civil Code (BGB) when someone has an item at their disposal free of charge. The difference between the two standards is that the disposition in Section 822 of the German Civil Code (BGB) is made by an authorized person. This is the case, for example, when someone assigns an item to another in fulfillment of an ineffective contract, whereupon the latter gives the item away to a third party. The previous owner could turn to his contractual partner regarding enrichment law, but cannot demand anything from him because he is not enriched: He has lost the enrichment item and received no consideration for it. Since the legislature also regards the free acquisition as less worthy of protection here, it grants the previous owner an enrichment claim against this.

However, since such a penetration is an exception in the law of enrichment, because the reversal of contracts is generally processed within the service relationships, the claim from § 822 BGB only exists if the claim based on performance conditions is excluded for legal reasons. Such an exclusion occurs in particular through the objection of depletion according to Section 818 (3) BGB. If this subsidiarity is respected, the person concerned can turn to the person who has obtained an advantage through the free disposal and demand that he surrender the advantage.

Legal consequences

Release of the enrichment

If the prerequisites for an enrichment claim are met, the opposing party is obliged to surrender what has been obtained to the claimant. Section 818, Paragraph 1 of the German Civil Code (BGB) extends the surrender obligation to the use made in accordance with Section 99 and Section 100 of the BGB, i.e. all fruits or benefits of use of the enrichment item. One use is, for example, the rent that is earned by renting a car that has been obtained without legal grounds. The enrichment claim also includes surrogates of the enrichment object , i.e. values ​​that have taken the place of the enrichment object in the property of the defendant, such as an insurance benefit for the destruction of a car that was obtained illegally.

It is controversial whether Section 818 (1) BGB also extends to legal surrogates, such as the proceeds from a resale of the enrichment item. The prevailing opinion rejects this, as the sale of the proceeds is only arranged in Section 816 (1) sentence 1 of the German Civil Code. Any additional proceeds therefore remain with the opposing party.

Duty to pay compensation, Section 818 (2) BGB

If the surrender of the enrichment item or a surrogate within the meaning of Section 818 (1) BGB is impossible , Section 818 (2) BGB obliges the opposing party to provide compensation in the amount of the objective value of the enrichment item. According to the prevailing opinion, the value at the time the enrichment claim arises is decisive.

There is usually an obligation to pay compensation if the enrichment item is a service, such as a flight, as such cannot be given out in kind. As a rule, the value is measured according to the remuneration customary in the market. The obligation to pay compensation under Section 818 (2) of the German Civil Code (BGB) can also be applied in the event of the unauthorized removal of electrical energy and the takeover of a customer base from a law firm acquired without a justification if this customer base is not willing to return to the previous owner of the firm.

Objection of depletion, § 818 Abs. 3 BGB

Content and function of the defense

Section 818 (3) BGB regulates the objection of depletion. If the claimant asserts them, the condition is limited to the enrichment that is currently present in the debtor's assets. The defense is intended to prevent the opposing party from being financially worse off as a result of the condition than it was before the enrichment occurred. The functional purpose of the objection of depletion is due to the fact that, unlike the law on damages, the law of enrichment is not linked to a fault allegation, which is why the liability for enrichment tends to be stricter. With the help of the objection of depletion, the strict liability is reduced to an appropriate level, which serves the purpose of the right to enrichment.

The opposing party can invoke deprivation of resources if he loses an item that has been obtained without a legal basis, for example through theft or destruction. If the asset is sold, the opposing party is enriched for as long as he has the proceeds from the sale.

Saved expenses

There is no depletion if the debtor consumes an enrichment, for example to cover his general life needs. Although the money required for this is eliminated from the debtor's asset cycle as an expense, he still retains the savings on his own expenses as a pecuniary advantage. The debtor remains enriched, in other words: he is not depleted. The same applies if the debtor fulfills his own obligation with the object of enrichment.

There is no saved expense if the debtor uses an enrichment as an expense for a personal benefit that he would not have achieved without the enrichment, such as a luxury expense. Luxury expenditures are neither necessary nor of continuing benefit. The case of air travel decided by the BGH in 1971 may serve as a textbook case, in which a minor understood to take a flight without a ticket, which he would not have been able to book with normal events due to insufficient funds.

Asset disadvantages that reduce enrichment

Depletion can occur when an advantage gained is consumed by financial disadvantages. These can consist of expenses for the enrichment item, for example feed costs for a dog obtained without legal grounds. Claims for surrender can be held against feed costs as depletion. If the dog destroys household items, this can also be countered to reduce enrichment. The extent to which damage can ultimately be replaced is controversial. The case law calls for a causally linked financial disadvantage. In the literature, crediting is mainly only done if the debtor accepts the financial disadvantage because he trusts that he will be able to keep the enrichment permanently.

The extent to which a purchase price can be asserted to reduce enrichment depends on the type of enrichment claim: It cannot be taken into account under the non-performance conditions. When it comes to performance conditions, the special principles in the reversal of mutual contracts are decisive.

Enrichment law reversal of mutual contracts

Reversal of mutual contracts under the law of enrichment can lead to problems. An ineffective purchase contract can lead to a performance condition for both parties. The seller's performance condition fails if the car is destroyed and cannot be returned. Although a claim for compensation is possible, this is countered by the objection of depletion, since the enforcement of the claim for compensation led to a loss of assets, which is not part of the right to enrichment. If the buyer could claim his purchase price back in full despite the destruction of the car, an unreasonable result would be achieved that runs counter to the legal risk distribution, because the loss of the object of sale is assigned to the buyer from the point at which the risk passes . For this reason, case law and literature developed different approaches to correct the result:

Balance theory

RG, 14.03.1903 - Rep. V. 458/02, RGZ 54, 137 - The foundation stone decision of the Reichsgericht on the balance theory.

The prevailing balance theory modifies the legal consequences of the enrichment claim by not considering the mutual enrichment claims of the parties in isolation from each other, but ipso iure balancing them without a declaration of offset. It then transfers the synallagmatic linking of the performance obligations from the contractual obligation to be settled into the right to enrichment (“factual synallagmatic”). If after offsetting a positive balance remains in favor of one party, the other can demand this excess as unjust enrichment. Problematic is the case of offsetting in the event of loss of enrichment in accordance with Section 818 (3) BGB, because one party is no longer obliged to give back. Here, the value of this service is deducted from the person's own claim to enrichment, the value of the enrichment becomes the deduction item. If the buyer cannot surrender a lost car after a void sales contract, the value (purchase price) becomes a deduction, so that the balance is zero and the seller ultimately retains the purchase price. Ultimately, this is a restriction of Section 818 (3) BGB.

Critical voices accuse the balance theory of having no basis in the law and therefore hardly being justified dogmatically. It is difficult to expand the Synallagma because it must be assumed that the risk distribution of a valid contract continues, which runs counter to the idea of ​​nullity and is perceived as unclean. The same applies to the appeal to the principle of venire contra factum proprium , because a void contract cannot develop a (general) protection of legitimate expectations. However, case law restricts the balance theory in those cases in which the need for party protection is greater than the correction of the risk distribution. It does not apply to the detriment of minors or incapacitated persons, as otherwise the special protection of these persons enshrined in the law would be circumvented. The balance theory also has no effect at the expense of someone fraudulently deceived or subject to usury . Finally, it does not apply if the loss of the thing is the result of a defect for which the supplier should have been liable.

In summary, it can be attested that similar enrichment claims can in principle be netted. The person who is deprived according to Section 818 (3) of the German Civil Code (BGB) is subject to the deduction of the value of the depletion against his own claim to enrichment for offsetting, provided he is responsible for the depletion or the protective purpose of the nullity standard prohibits a deduction.

Restricted two-condition theory

The weaknesses that the construction of a “factual synallagma” of the balance theory bring with it, tries to avoid the opposing two-condition theory by a different approach. It considers the respective claims for enrichment of the contractual partners in isolation and compares them independently of one another. They have no influence on each other. Consequently, the debtor may enrichment because of its own claim at best retention assert or he expects to , in which he explained the set-off must also. In contrast to the balance theory, there is no offsetting ipso iure. Worsening of the thing or its downfall have a detrimental effect on the other, because his claim for reversal remains unaffected.

Strict application of this theory, however, can lead to inequitable results. Therefore it is subject to restrictions. These are derived from the ratings of the right of withdrawal . Who ultimately has to bear the risk of depletion should depend on who is legally assigned the risk of destruction of the thing. Section 346, Paragraph 3, No. 3 of the German Civil Code (BGB) stipulates that the buyer is liable for the loss of the item if he can be proven to be at fault.

The weakness of this view lies in the fact that a seller who fraudulently deceives the buyer of a thing would be granted a claim to enrichment because the buyer was responsible for the downfall of the thing on the other side. For this reason, it only applies where the protection of minors, in particular, requires the stringency of the independence of the conditional lines.

Stricter liability, § 818 Paragraph 4 - § 820 BGB

According to Section 818 (4) of the German Civil Code (BGB), the debtor is liable from the point in time of lis pendens ( Section 261 ZPO ) according to the general rules. The filing of a lawsuit (delivery of the application) and the filing of a claim in the oral hearing lead to the claim being pending. Knowledge of the obligation to surrender and violations of the law or morals lead to a tightening of liability according to § 819 Paragraph 1 BGB. The same applies vice versa for the recipient of the service (§ 819 Paragraph 2 BGB). Even an uncertain occurrence of success can trigger an intensification of liability according to § 820 BGB, which aims to ensure that success does not ultimately occur.

Enrichment processing in multi-person relationships

The unwinding of multi-person relationships under enrichment law is often difficult, as there are a large number of possible cases that may require different treatment. In consistent case law, the BGH takes the view that any schematic solution is forbidden in the enrichment law treatment of processes in which more than two people are involved and that it always depends on the specifics of the individual case.

In principle, it can be stated that the performance condition has priority over the non-performance condition. This means that the enrichment compensation takes place primarily in the respective performance relationships. This can sometimes be complicated in multi-person relationships, since from the point of view of one person, giving a thing can be seen as a service, from the point of view of another object as an interference with another's law. If it is unclear who has done what to whom, the point of view of the service recipient is decisive for reasons of traffic protection.

Example case: V sells and transfers to K a thing. K sells and transfers this item in turn to a third party D. If the purchase contract between V and K is void, V has a claim against K from performance conditions. Since K can no longer surrender the thing because he has lost his property to D, he has to pay compensation. If K falls into bankruptcy, V receives nothing due to the depletion of K. V would therefore have an interest in sticking to D. However, this is excluded, as this has acquired ownership and possession of the item from his contractual partner K, i.e. through a performance. As a result, these enrichment objects can only be demanded through a performance condition, i.e. only through K.

Principle of the performance chain

The processing of multi-person relationships in the service chains (A - B - C) is important. A classic application is the bank transfer (three-person relationship: instructing bank customer - executing bank - transfer recipient). Pathologies can occur in this constellation. The instruction can be lacking in effectiveness, it can turn out that one party lacks legal capacity, the recipient of the transfer may not have any claims against the instructing party. Fundamental considerations therefore lead to the following approaches: If there is a simple defect, the corresponding service ratio is conditional, which only exceptionally does not apply in the case of a third party obligation to surrender according to § 822 BGB. If there is a double defect (disruption in both contractual obligations), the same conditions are generally applied. In this case, this means in particular that there is neither a "penetration condition" (for example in the ratio A - C), nor a restriction to a "condition of the condition" (assignment of the enrichment claim of B - C to A, for example). A double deficiency increases the risks for A, because C may raise objections ( e.g. rights of retention ) to the enforcement that B could not have raised. In principle, the parties involved in a performance relationship should also bear the respective risk of insolvency among themselves and not run the risk of being claimed by third parties in terms of enrichment law (reversal of an internal relationship inter partes ).

A large number of cases in multi-person relationships are conceivable in enrichment law. Jurisprudence and literature therefore endeavor to find generally recognized principles that do justice to these constellations.

Triangle ratio

In contrast to the outlined performance chains of the two-person relationship, triangular relationships are constellations in which the individual transactions are not necessarily recognizable in isolation, but rather have an internal connection. Such a connection can be that someone acts to enable the fulfillment of an obligation from the other legal relationship.

Instruction

Instruction transactions are legal transactions in which an instructing party (debtor) instructs the donor (bank) to transfer the money to the recipient (money creditor), a classic case in cashless payment transactions by means of a transfer order. This gives rise to the problem against whom the referring bank has claims for surrender if something goes wrong: against the instructing or against the recipient?

If the instruction (order and execution of the order) is effective, but the causal transaction (legal basis of the instruction) is ineffective, the recipient of the service will be unjustifiably enriched. The processing takes place within the performance relationships.

The case is different if the instruction (order and order execution) is ineffective, so that the debtor (the instructing person) is enriched because of debt repayment. In this case, the bank can stick to its customer (= instructing party) and then conditional on him if the instruction was initially effective, but was then contested or revoked by the instructing person without the knowledge of the recipient (= creditor).

This case is different again: If an instruction is missing or initially ineffective, or if the recipient (= creditor of the money) is aware of the subsequent ineffectiveness of the instruction upon receipt of the payment, this time the bank will adhere to the recipient of the service and to him can condense. This follows from the fact that the recipient lacks a legal offense for being allowed to keep, so that this is not worthy of protection.

Donation based on a real contract in favor of third parties

Donations based on a pathological real contract in favor of third parties ( Section 328 BGB) can also be a case of enrichment compensation in a multi-person relationship . In the case of a real contract in favor of a third party, the promising party and the recipient of the promise conclude a contract by which the promising party undertakes to provide a third party. One purpose of the contract is to shorten the service path. Nevertheless, it is processed in the performance relationships.

Another purpose of the contract is to supply the third party. The processing takes place in the relationship of the donor to the third party. The agreement states that, contrary to Section 335 BGB, only the third party should be entitled to claim. Contrary to § 335 BGB, processing takes place in the relationship of the donor to the third party.

The donation can, however, represent an independent service to the third party if the third party's right to claim is detached from the existence of the contract.

Paying off someone else's debt

Another application is the repayment of third-party debt in accordance with § 267 , § 362 BGB. A distinction is made here:

If the debtor has not caused the third party to perform, the third party pays the debtor if the debt actually exists, because he effects the fulfillment of his debt. If, on the other hand, the debt does not exist, only the creditor is enriched, which is why the payer is entitled to an enrichment claim against him.

If the debt does not exist, the creditor is enriched. The condition against him takes place in the way of § 812 Abs. 1 S. 1, Alt. 1 BGB or by way of § 812 Paragraph 1 Sentence 2 Alt. 1 BGB.

If, on the other hand, the debt exists, the debtor is enriched due to repayment. A claim against the debtor from the contract law standards of § 662 , § 670 BGB, possibly from management without an order according to § 677 , § 683 , § 670 BGB comes into consideration . A recourse condition within the meaning of Section 812 (1) sentence 1 old is only subsidiary. 2 BGB possible.

If only a supposedly own debt is paid, there is basically no case of repayment of someone else's debt. Here the condition against the obligee (= recipient of the service) comes from § 812 para. 1 sentence 1 alt. 1 BGB into consideration. According to established case law, a subsequent third-party repayment provision is even possible, provided that this does not impair the interests of third parties that are worthy of protection. In this respect, the condition against the real debtor applies for the reversal.

If, on the other hand, the debtor initiates the third-party service, the reversal takes place because of the interests that are comparable to those of the instruction cases.

Influence of property law evaluations

A case of enrichment compensation in triangular relationships can arise in the case of “acquisition through the action of an unauthorized person at the expense of the person entitled”. Linked to this is the question of whether the person entitled can also request the acquirer to hand them over. Such a case constellation exists when a building contractor erects a building on behalf of his customer and uses third-party building material. The BGH had to decide here whether the owner of the building material, who had lost his property through processing, could claim compensation from the customer. In order to judge who can condense with whom, there is recourse to property law assessments, in particular those of bona fide acquisition from unauthorized persons .

First of all, it depends on whether the underlying disposal was made for a fee or free of charge. In the case of unpaid disposals, the person entitled can adhere to the purchaser in accordance with Section 816 (1) sentence 2 of the German Civil Code (BGB). In the case of dispositions against payment, the "evaluation model" of §§ 816 Paragraph 1, § 932 - § 935 . BGB, § 366 HGB used: if the customer could acquire ownership of the thing in good faith, he cannot be claimed under enrichment law because he is more worthy of protection than the previous owner according to property law assessments (protection of traffic interests). If, on the other hand, he had not become the owner, for example because the previous owner of the item had been lost in accordance with Section 935 of the German Civil Code (BGB), a conditional agreement can be made with him as an exception, since the previous owner is then more worthy of protection (protection of the property's interest).

In principle, the following applies to the legal acquisition of property: An enrichment compensation takes place in accordance with § 951 BGB in cases of acquisition through combination , mixing or processing , § § 946 ff. BGB. The unlawful enrichment in this case is that the claimant loses his property while the defendant acquires it. The supplier commissioned to deliver the goods ordered contrary to the agreement wants to keep himself harmless after his contractual partner has fallen into insolvency, for example. In the case of multi-person relationships, the prevailing opinion is that what is decisive is whose service the grant is from the recipient's point of view (performance ratio).

Defense of enrichment, § 821 BGB

According to § 821 BGB, a debtor may refuse to fulfill an obligation entered into without legal grounds even if his claim to release from the obligation has expired. This objection supplements the right to refuse performance, which follows from § 242 BGB. According to this, the debtor can refuse performance to the obligee before the statute of limitations commences, since the obligee would have to surrender it immediately as an unlawful enrichment.

International law of enrichment

The autonomous international right to enrichment is regulated in Art. 38 , Art. 41 and Art. 42 EGBGB . However, EU law has priority of application . The law applicable to unjust enrichment is determined by Art. 10 Rome II Regulation. An area of ​​application for national law thus only remains within the areas which are excluded from its area of ​​application according to Art. 1, Paragraph 2 of the Rome II Regulation.

literature

• Wolfgang Ernst (ed.): Studies on the doctrine of unjust enrichment . Mohr Siebeck, Tübingen 2003, ISBN 3-16-147930-0 .
• Hans-Georg Koppensteiner, Ernst Kramer: Unjust enrichment . De Gruyter, Berlin 1975, ISBN 3-11-004682-2 .
• Michael Martinek: The right to unjust enrichment and to run the business without a mandate . In: Michael Martinek (ed.): Staudinger BGB: Cornerstones of civil law . 5th edition. De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
• Heiko Plassmeier: Unjust enrichment in international private law and from a comparative law perspective . Duncker and Humblot, Berlin 1996, ISBN 3-428-08584-1 .
• Dieter Reuter, Michael Martinek: Unjust enrichment 2nd part volume . 2nd Edition. Reform ideas. Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154527-6 .
• Jan Wilhelm: Violation of the law and property decision as the basis and limits of the claim from unjust enrichment . Röhrscheid, Goldbach 1996, ISBN 3-7928-0340-2 .

Web links

• Civil Law Tutorial: Enrichment Law (Saarland University)
• The performance conditions in German law and their exclusions (via juratexte.de ) - overview in PDF format

Individual evidence

1. ↑ ^{a b} Michael Martinek: The right of unjust enrichment and management without an order . In: Michael Martinek (ed.): Staudinger - cornerstone of civil law . De Gruyter, Berlin 2008, ISBN 978-3-8059-1109-2 , p. 809-888 .
2. ↑ Josef Esser: Principle and norm in judicial training in private law . 3. Edition. Mohr Siebeck, Tübingen 1974, p. 269 .
3. ^ Friedrich Carl von Savigny: System of today's Roman law . tape V , 1841, p. 507 .
4. ^ Friedrich Carl von Savigny: System of today's Roman law . tape V , 1841, p. 525 .
5. ^ Fritz Schulz : System of the rights to the acquisition of interference . In: Archives for civilist practice . tape 105 , 1909, pp. 1 sqq .
6. ^ Walter Wilburg: The doctrine of unjust enrichment: according to Austrian and German law . Leuschner & Lubensky, Graz 1934, p. 18 .
7. ↑ Michael Martinek: The right of unjustified enrichment and management without an order , Rn. 16-17. In: Michael Martinek (ed.): Staudinger BGB: Cornerstones of civil law . 5th edition. De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
8. ^ Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2011, ISBN 978-3-8006-3908-3 . § 26, 2.
9. ↑ BGHZ 55, 128.
10. ↑ BGHZ 65, 123 .
11. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 10, Rn. 4-5.
12. ^ Prince Karl August von Sachsen-Gessaphe: § 812. Rn. 8. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
13. ↑ BGHZ 26, 349 . BGHZ 55, 128 .
14. ↑ Martin Schwab: § 812. Rn. 1. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 . Karl August Prince of Saxe-Gessaphe: § 812. Rn. 8. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
15. ↑ Claus-Wilhelm Canaris: Note on Federal Court of Justice VII ZR 9/70. In: JuristenZeitung 1971, p. 560 (561).
16. ↑ BGHZ 40, 272 (277); BGHZ 48, 70 (73); BGHZ 50, 227 (230).
17. ^ BGH, judgment of February 4, 1999, III ZR 56/98 = Neue Juristische Wochenschrift 1999, p. 1393 (1394).
18. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 10, Rn. 13.
19. ↑ Reiner Schulze: § 812. Rn. 6. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (eds.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
20. ↑ Stephan Lorenz: Before §§ 812 ff. Rn. 1. In: Michael Martinek (Ed.): J. von Staudinger's commentary on the Civil Code: §§ 812–822 (unjustified enrichment) . Verlag Walter de Gruyter, Berlin 2007, ISBN 978-3-8059-1036-1 . Karl August Prince of Saxe-Gessaphe: § 812. Rn. 33. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
21. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 10, Rn. 29
22. ↑ BGHZ 83, 278 .
23. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 10, Rn. 32.
24. ↑ Reiner Schulze: § 814. Rn. 5. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
25. ↑ BGHZ 99, 160 (161).
26. ↑ Michael Martinek: Schenkkreis und Kondiktionsblocks. In: Michael Martinek, Dieter Reuter (Hrsg.): Festschrift for Dieter Reuter on his 70th birthday on October 16, 2010 . De Gruyter, Berlin 2010, ISBN 978-3-89949-685-7 , pp. 183-184 .
27. ↑ BGHZ 44, 1 (6).
28. ↑ Stephan Lorenz: § 817, Rn. 10. In: Michael Martinek (ed.): J. von Staudinger's comment on the German Civil Code: §§ 812–822 (unjustified enrichment) . Verlag Walter de Gruyter, Berlin 2007, ISBN 978-3-8059-1036-1 .
29. ↑ Reiner Schulze: § 817. Rn. 5-7. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
30. ↑ ^{a b} Stephan Lorenz, Johannes Cziupka: Basic Knowledge - Civil Law: Enrichment Law - Basic Types of Conditions . In: Juristische Schulung 2012, p. 777 (778).
31. ^ Prince Karl August von Sachsen-Gessaphe: § 812. Rn. 38. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
32. ^ Prince Karl August von Sachsen-Gessaphe: § 812. Rn. 37-42. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 . Stephan Lorenz: § 812 , Rn. 94 ff: In: Michael Martinek (Ed.): J. von Staudinger's commentary on the Civil Code: §§ 812–822 (unjustified enrichment) . Verlag Walter de Gruyter, Berlin 2007, ISBN 978-3-8059-1036-1 .
33. ↑ BGHZ 111, 125 (130).
34. ^ Karl August Prince of Sachsen-Gessaphe: § 814. Rn. 2. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
35. ↑ Dieter Reuter, Michael Martinek: Unjust enrichment . Mohr Siebeck, Tübingen 1983, ISBN 978-3-16-146004-3 , p. 149 .
36. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 10, Rn. 58, 65.
37. ^ Prince Karl August von Sachsen-Gessaphe: § 812. Rn. 55. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
38. ↑ Martin Schwab: § 812. Rn. 378. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
39. ^ BGH, judgment of February 23, 1965, VI ZR 281/63 = Neue Juristische Wochenschrift 1965, p. 1224 f .; BAG, judgment of February 19, 1970, 5 AZR 241/69 = Neue Juristische Wochenschrift 1970, p. 1701 f.
40. ^ Karl August Prince of Sachsen-Gessaphe: § 815. Rn. 1. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
41. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 10, Rn. 42.
42. ↑ Hanns Prütting: § 813 , Rn. 1. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
43. ↑ On this, BGH, judgment of July 5, 2013, V ZR 141/12 = Neue Juristische Wochenschrift 2013, p. 3243.
44. ^ Karl August Prince of Sachsen-Gessaphe: § 813. Rn. 6. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
45. ↑ BGH, judgment of 6 June 2012, VIII ZR 198/11 = Neue Juristische Wochenschrift 2012, p. 2659.
46. ^ Karl August Prince of Sachsen-Gessaphe: § 813. Rn. 9. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
47. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , Rn. 82.
48. ↑ BGHZ 8, 348 (370).
49. ↑ Detlef König: Unjust enrichment. Facts and order problems in a comparative law perspective . Heidelberg 1985, ISBN 978-3-8253-3610-3 , pp. 126-127 .
50. ↑ Martin Schwab: § 817. Rn. 8. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich commentary on the civil code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
51. ^ AG Naumburg, judgment of April 20, 2001, 3 C 918/00 = Neue Juristische Wochenschrift 2001, p. 2890.
52. ^ Hans-Georg Koppensteiner, Ernst Kramer: Unjust enrichment . De Gruyter, Berlin 1975, ISBN 3-11-004682-2 , pp. 60 .
53. ^ ^{A b} Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 10 Rn. 1.
54. ↑ BGHZ 107, 117 .
55. ^ Karl August Prince of Saxony-Gessaphe: § 812, Rn. 72. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
56. ↑ BGHZ 94, 160 (165).
57. ^ Karl August Prince of Saxony-Gessaphe: § 812, Rn. 88. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
58. ↑ For example Fritz Schulz : System of the rights to the acquisition of interference . In: Archives for civilist practice 1909, p. 1.
59. ↑ BGHZ 100, 95 .
60. ↑ BGHZ 68, 90 (98). BGHZ 81, 75 (80). BGHZ 99, 244 (247). BGHZ 107, 117 .
61. ↑ BGHZ 129, 66 .
62. ^ Prince Karl August von Sachsen-Gessaphe: § 812. Rn. 84. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
63. ↑ BGHZ 68, 90 (94-95).
64. ↑ BGHZ 20, 345 (346). BGH, judgment of March 11, 2009, I ZR 8/07 = Competition in Law and Practice 2009, p. 1269 (1273).
65. ↑ BGHZ 192, 204 .
66. ↑ BGHZ 71, 86 (98).
67. ↑ Marco Staake: Statutory Obligations . Springer, Berlin 2014, ISBN 978-3-642-30093-6 , pp. 82 .
68. ↑ Martin Schwab: § 812. Rn. 296. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
69. ↑ OLG Koblenz, judgment of November 8, 1988, 3 U 176/87 = Neue Juristische Wochenschrift. 1990, p. 126.
70. ↑ Marco Staake: Statutory Obligations . Springer, Berlin 2014, ISBN 978-3-642-30093-6 , pp. 83 .
71. ↑ Stephan Lorenz, John Cziupka: basic knowledge - Civil rights: enrichment law - basic types of Kondiktionen . In: Juristische Schulung 2012, p. 777 (780).
72. ^ Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 10 Rn. 24.
73. ↑ Martin Schwab: § 818. Rn. 202. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
74. ↑ BGHZ 78, 201 (205). BGHZ 97, 231 (234).
75. ^ Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 10 Rn. 26th
76. ^ BGH, judgment of May 15, 1986, VII ZR 274/85 = Neue Juristische Wochenschrift. 1986, p. 2700.
77. ^ BGH, judgment of July 14, 1964, VI ​​ZR 129/63 = Neue Juristische Wochenschrift. 1964, p. 1898 (1899). BGH, judgment of January 18, 1983, VI ZR 270/80 = Neue Juristische Wochenschrift 1983, p. 812 (814).
78. ↑ Ernst von Caemmerer: Claims to enrichment and relationships with third parties . In: JuristenZeitung 1962, p. 385 (386). Werner Flume: On the question of against whom someone who has mistakenly assumed their own guilt has a claim to enrichment . In: JuristenZeitung 1962, p. 281 (282).
79. ^ Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 10 Rn. 27.
80. ↑ Jürgen Oechsler: § 932. Rn. 1-5. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 6 : §§ 854–1296, WEG, ErbbauRG. CH Beck, Munich 2013, ISBN 978-3-406-61466-8 .
81. ^ Marina Wellenhofer: Property law . 34th edition. CH Beck, Munich 2019, ISBN 978-3-406-75197-4 , § 8, Rn. 1.
82. ↑ Reiner Schulze: § 816. Rn. 1. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Civil Code: Hand Commentary . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
83. ^ Karl August Prince of Sachsen-Gessaphe: § 816. Rn. 3-4. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
84. ^ Karl August Prince of Sachsen-Gessaphe: § 816. Rn. 6-7. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
85. ↑ Dimitrios Linardatos: The Kondiktionstatbestände of § 816 BGB - Part I . In: Legal Training 2018, p. 102.
86. ↑ BGHZ 29, 157 . BGH, judgment of September 24, 1996, XI ZR 227/95 = Neue Juristische Wochenschrift 1997, p. 190.
87. ↑ Petra Buck-Heeb: § 816. Rn. 19-20. In: Walter Erman (Ed.): BGB . 15th edition. Dr. Otto Schmidt, Cologne 2017, ISBN 978-3-504-47103-3 . Hartwig Sprau: § 816. Rn. 10. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
88. ↑ Stephan Lorenz: § 816. Rn. 23. In: Michael Martinek (Ed.): J. von Staudinger's commentary on the Civil Code: §§ 812–822 (unjust enrichment) . Verlag Walter de Gruyter, Berlin 2007, ISBN 978-3-8059-1036-1 . Martin Schwab: § 816. Rn. 42. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
89. ^ ^{A b} Karl August Prince of Saxony-Gessaphe: § 816. Rn. 23. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
90. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 11, Rn. 39.
91. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 383-388.
92. ↑ Christian Jülch: Obligatory weakness of the right in rem using the example of § 816 I 2 BGB . In: Legal worksheets 2012, p. 326.
93. ↑ RGZ (GS) 163, 348 ff.
94. ↑ BGHZ 37, 363 (368) - with regard to the underlying case, it is still disputed in the literature today whether the chance of winning given to a player by the bank can be regarded as a sacrifice of property if it has not materialized. BGHZ 47, 393 (395-396).
95. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 389-390.
96. ↑ Martin Schwab: § 816. Rn. 59-60. In: Mathias Habersack, Hans-Jürgen Papier , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
97. ↑ Christian Jülch: Obligatory weakness of the right in rem using the example of § 816 Paragraph I 2 BGB. In: Juristische Arbeitsblätter 2012, p. 326 (329).
98. ↑ Dieter Reuter, Michael Martinek: Unjust enrichment . Mohr Siebeck, Tübingen 1983, ISBN 978-3-16-146004-3 , § 8 II 2.
99. ↑ Christian Jülch: The enrichment compensation in the 3-person relationship according to § 816 II BGB . In: Legal worksheets 2013, p. 324.
100. ↑ Jens Petersen: The service to the unauthorized . In: Jura 2010, p. 281.
101. ↑ BGHZ 32, 357 .
102. ^ Günther Roth, Eva-Maria Kieninger: § 407 , Rn. 1. In: Wolfgang Krüger (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 2: §§ 241-432 . CH Beck, Munich 2016, ISBN 978-3-406-66540-0 .
103. ↑ BGHZ 85, 267 (272).
104. ↑ Jens Petersen: The service to the unauthorized . In: Jura 2010, p. 281 (282). Christian Jülch: The enrichment compensation in a 3-person relationship according to § 816 II BGB . In: Juristische Arbeitsblätter 2013, p. 324 (328–330).
105. ^ Karl August Prince of Sachsen-Gessaphe: § 822. Rn. 1. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
106. ↑ Dimitrios Linardatos: The liability for enrichment according to § 822 BGB . In: Juristische Schulung 2017, S. 816. Rolf Knütel: § 822 BGB and the weaknesses of unpaid employment . In: Neue Juristische Wochenschrift 1989, p. 2504.
107. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 11, Rn. 48.
108. ↑ BGHZ 35, 356 . BGHZ 196, 285
109. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 12, Rn. 7th
110. ↑ BGHZ 112, 288 (295).
111. ↑ Bernd Linke: § 818. Rn. 17. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
112. ↑ BGHZ 5, 197 (201-202). BGHZ 132, 198 (207).
113. ↑ BGHZ 5, 197 .
114. ↑ BGHZ 55, 128 .
115. ↑ Bernd Linke: § 818. Rn. 31. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
116. ↑ BGHZ 117, 29 .
117. ↑ BGHZ 168, 220 .
118. ↑ BGHZ 1, 75 (81). BGH, judgment of October 23, 1980, IVa ZR 45/80 = Neue Juristische Wochenschrift 1981, p. 277.
119. ↑ Marco Staake: Statutory Obligations . Springer, Berlin 2014, ISBN 978-3-642-30093-6 , pp. 138 .
120. ↑ Marco Staake: Statutory Obligations . Springer, Berlin 2014, ISBN 978-3-642-30093-6 , pp. 139 .
121. ↑ BGH, judgment of January 17, 2003, V ZR 235/02 = Neue Juristische Wochenschrift 2003, p. 3271.
122. ^ BGH, judgment of May 9, 1984, IVb ZR 7/83 = Neue Juristische Wochenschrift. 1984, p. 2095. BGH, judgment of April 18, 1985, VII ZR 309/84 = Neue Juristische Wochenschrift 1985, p. 2700.
123. ↑ BGHZ 55, 128 .
124. ↑ Marco Staake: Statutory Obligations . Springer, Berlin 2014, ISBN 978-3-642-30093-6 , pp. 142 .
125. ↑ BGHZ 1, 75 (81). BGHZ 14, 7 (9).
126. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 12, Rn. 23. Walter Wilburg: The doctrine of unjust enrichment according to Austrian and German law . Leuschner & Lubensky, Graz 1934, p. 152.
127. ↑ Martin Schwab: § 818. Rn. 134. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
128. ↑ BGHZ 14, 7 .
129. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 12, Rn. 26th
130. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 12, Rn. 25th
131. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 12, Rn. 31. Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 8 Rn. 19th
132. ^ Stephan Lorenz: Basic knowledge - civil law: The balance theory . In: Legal Training 2015, p. 109.
133. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 224.
134. ^ Karl Larenz, Claus-Wilhelm Canaris: Textbook of the law of obligations . 13th edition. tape 2 . Half volume 2: special part . CH Beck, Munich 1993, ISBN 3-406-31484-8 , § 73 III 7.
135. ↑ BGHZ 126, 105 .
136. ↑ BGHZ 57, 137 . BGHZ 146, 298 .
137. ↑ BGHZ 78, 216 .
138. ^ Dieter Medicus: Civil law. A presentation for exam preparation, arranged according to the requirements . Heymanns, Cologne 1968. 25th, revised edition with Jens Petersen: Verlag Franz Vahlen, Munich 2015, ISBN 978-3-8006-4992-1 . § 12, 3. The Synallagma in the reverse transaction , no. 223-235.
139. ^ ^{A b} Manfred Wandt: Statutory Obligations: Tort law, Damage Law, Enrichment Law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 12, Rn. 38-41.
140. ↑ Stephan Lorenz: Third-party relationships under enrichment law . In: Juristische Schulung 2003, S. 729. Stephan Lorenz: Enrichment law third relationships . In: Juristische Schulung 2003, p. 839.
141. ↑ BGHZ 66, 362 . BGHZ 89, 376 .
142. ^ Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 11 marginal no. 2.
143. ↑ BGHZ 36, 30 . BGHZ 105, 365 .
144. ↑ BGHZ 40, 272 .
145. ^ Claus-Wilhelm Canaris: The enrichment compensation in a three-person relationship . In: Gotthard Paulus (Hrsg.): Festschrift for Karl Larenz on his 70th birthday . CH Beck, Munich 1973, ISBN 978-3-406-04740-4 , pp. 799 .
146. ↑ Andreas Neef: The enrichment law reversal in the event of incorrect instructions . In: Juristische Arbeitsblätter 2006, p. 458. Ronny Hauck: Enrichment compensation for instruction cases after implementation of the Payment Services Directive . In: Legal Training 2014, p. 1066.
147. ↑ Ronny Hauck: Enrichment compensation for instruction cases after the implementation of the Payment Services Directive . In: Juristische Schulung 2014, p. 1066 (1066-1067).
148. ↑ BGHZ 61, 289 . BGHZ 66, 362 . BGHZ 66, 372 .
149. ^ Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 11 marginal no. 14th
150. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 13, Rn. 76-79. Michael Martinek: The right of unjust enrichment and management without a mandate , Rn. 54-55. In: Michael Martinek (ed.): Staudinger BGB: Cornerstones of civil law . 5th edition. De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
151. ↑ BGHZ 113, 62 .
152. ↑ BGHZ 56, 228 .
153. ↑ BGHZ 55, 176 . BGHZ 56, 228 .
154. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 13, Rn. 15-18.
155. ↑ Martin Schwab: § 821 , Rn. 1-5. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .

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