Claim to Compensation between the Legal and the Genetic Father: A Testcase for the Dogmatics of Unjust Enrichment

Abstract

Under French, German and Swiss law, if another man is found to be the father of a child, the putative father can claim compensation for the maintenance paid for the child on the ground of unjust enrichment. An analysis of the conditions and consequences of this claim shows that this liability for enrichment is subject to distinct prerequisites and that the exact construction of the claim remains unclear in many aspects. Differences between the three legal systems already exist regarding the contestation of paternity: French law, for example, only permits contestation under significantly more restrictive conditions than the other two legal systems. In particular, however, only German case law permits the incidental determination of paternity for actions brought by the putative father against the genetic father, which is questionable from the point of view of status law. Dogmatic distortions are also evident in the application of the law of enrichment, where even the ground of the action is not stated consistently: French law, which was reformed in 2016, appears to ground the action of the apparent father on a subsidiary liability for enrichment (actio de in rem verso), while German law indirectly leads to the condictio indebiti and, finally, the Swiss Federal Court applies the condictio ob causam finitam. These divergences are by no means of a merely conceptual nature; rather, the three actions are linked to entirely different conditions and may also result in different legal consequences in the details. The comparison of the three legal systems thus reveals, on the one hand, persistent ambiguities as to the construction and justification of the liability for unjust enrichment; on the other hand, it raises the question of whether and to what extent the putative father’s claim for compensation is compatible with the best interests of the child and family peace. Dutch law, for example, rejects any claim for compensation arising from a contestation of fatherhood.