BGH, 4 Februar 1998* — Zur Bereicherungshaftung des Beschenkten Gegenüber Demjenigen, Dessen Wertpapiere ihm der Schenker unter Ausnutzung einer Verfügungsvollmacht Zugewendet Hat

Abstract

The ruling of the BGH was based on the following facts. In 1986 the claimant received several securities from the father of both litigating parties. Their father had a power of disposal over the claimant's bank account and the securities deposit, respectively. In 1994 the father — in agreement with Defendant, being the claimant's sister — arranged for a transfer of the securities to Defendant's deposit. The claimant argued that his father has thus abused the power of authority conferred upon him. Defendant allegedly knew of the ultra vires nature of this action. In addition, the transfer of the securities had fiduciary effect only. Defendant disputed that the securities were part of the claimant's property. Also, she argued that she was not aware that they were transferred from the claimant's deposit. From her point of view, the transaction was a gratuitous grant originating from her father's property. The District Court ruled in favour of the claimant; whereas the Court of Appeals dismissed the action. The ensuing appeal to the BGH brought by the claimant resulted in a reversal of the latter ruling and the case was subsequently referred back to the Court of Appeals. In this case, the BGH discussed the relevant provisions contained in the law of unjust enrichment. Art 816 para. 1 2nd sentence BGB was held not to be applicable since the element of disposal by an unauthorized person was missing. Then, the BGH considered Art 812 para. 1 1st sentence ('on account of the claimant') as a basis for holding the claimant accountable, the requirements of which are prima facie complied with: The securities were part of the claimant's property; the excess of authority was met by the gratuitous disposal effected by the authorized person, i.e. the father. Both elements do not amount to a justification for keeping the securities in question in the meaning of Art 812 para. 1 1st sentence. It is, however, of the essence how the transfer of securities to Defendant is to be qualified (for instance, as a benefit/performance by the father to Defendant; cf. principle of priority of the Leistungskondiktion). This assessment, in turn, depends on various other circumstances (such as the expectations of the parties involved; the viewpoint of the beneficiary, etc.) in respect of which the Court of Appeals has not yet asserted the necessary facts. The following case note discusses the decision by the BGH in the light of Belgian, Dutch, Italian, and Greek Law.