BGHZ 26, 217 IV. Civil Senate (IV ZR 173/57) = NJW 1958, 544 = JZ 1958, 247
08 January 1958
Professor B.S. Markesinis

The defendant entertained an adulterous association with the plaintiff’s wife over a lengthy period, and a child was born on 21 September 1953. By a judgment of 17 May 1955 it was declared that the child was not the legitimate issue of the plaintiff and on 11 November 1955 the defendant, by a public document, recognized the child as his own and undertook to pay a monthly sum of DM 50 as maintenance. The marriage of the plaintiff with the mother was dissolved on 5 January 1956 by a decree which declared both to be guilty; but the wife’s degree of blame was held to be predominant.

The plaintiff claimed DM 1457 from the defendant consisting of his expenses in connection with the birth of the child, its maintenance, the costs of the action to have it declared illegitimate, and reimbursement of his repayments to the city of Nürnberg of a child’s allowance.

The Court of Appeal of Nürnberg allowed the claim. Upon appeal the decision below was reversed in part only for the following



. . .


According to § 1715 BGB the natural father is under an obligation to reimburse the mother for the expenses of her delivery. The expenses of the delivery were paid by the plaintiff in ignorance of the fact that the defendant was the real father of the child. By these payments the obligations of the defendant towards the child’s mother were also discharged. It is true that in principle a natural father is not relieved of his obligation under § 1715 BGB by the fact that a third party has paid the expenses of the delivery. However, considering the purpose of this provision, which only envisages the normal case of the delivery of an unmarried woman, different considerations must apply if and to the extent that the expenses of the delivery have been paid by the husband of the woman. Thus as a result of the plaintiff’s payment the defendant has been saved the payment of the expenses of delivery, without good legal reason, and at the plaintiff’s cost. In accordance with § 812 BGB the defendant must therefore reimburse the plaintiff for this sum . . .

III. On the other hand the appeal is justified in respect of the expenses, claimed by the plaintiff, for the perambulator, the baby’s bed, its clothes, the contributions to the sickness insurance totalling DM 210 since these expenses must be regarded as part of the expenses of maintaining the child (§ 1708 I, second sentence) and since under § 1710 I BGB maintenance is to be provided by means of money payments; for the period in question these expenses are already covered by the maintenance payments awarded above (I). The plaintiff cannot either claim these expenses on the ground that they represent damages in tort; in this respect the observations set out below apply here as well . . .

IV. Further, the appeal is well founded in so far as the defendant has been condemned to reimburse the plaintiff for the costs arising from the proceedings to contest the legitimacy of the child.

This Division has already dealt several times with the question as to whether a third party can be held liable for the pecuniary losses caused to one spouse as a result of the relations of a third party with the other spouse which are adulterous or in violation of matrimonial fidelity. This Division has denied that such a claim for damages exists [references]. These decisions have been criticized by writers [references]. However, these attacks do not provide any reason for this Division to change its previous practice. Instead the following comments may be made.

1. The decision of 6 February 1957 is being misinterpreted if it is understood to lead to the inevitable conclusion that no damages can be claimed for injuries to a spouse, such as infection with a venereal disease of a wife who had been the victim of rape, even if the requirements of §§ 823 ff. BGB have been complied with. As the reasons set out in para. 3 of this decision [reference] show clearly, this Division has only rejected claims for damages in so far as they are derived from ‘the destruction of the marriage’. If, however, no liability in damages arises from the ‘destruction of the marriage’, it is irrelevant whether the damage caused by the destruction of the marriage is adequate or not.

2. The marital duties which arise mutually between spouses, in particular the duty of fidelity, are personal obligations of the spouses, having regard to the nature of marriage. Therefore they can only be violated by a spouse and not by a third party [reference].

3. § 172 of the Criminal Code, which only provides the possibility for punishing adultery, does not offer any guidance as to the existence of a duty to pay damages. Other violations of marital duties are not punishable according to German criminal law.

4. It is true that in principle a duty to contribute presupposes a duty to pay damages on the part of the person found to contribute [references]. Boehmer affirms in principle that a spouse is liable in damages, but wishes to prevent any enforcement while the marriage persists, with the result that the principles established by the Bundesgerichtshof [reference] would apply without difficulty. However, as Beitzke remarks appositely, the principle of § 242 BGB requires that if a claim lies against the third party involved in the break-up of the marriage in respect of the loss suffered by the other spouse in consequence of the break-up, the third party must not bear the payment of these damages alone; instead his associate, namely the other spouse, who as a rule is principally to blame, must bear his share (see the case decided by the Bundesgerichtshof in [reference] where an exemption clause agreed between the spouses could not deprive the third party of his right to contribution). It is generally agreed that in assessing the amount of contribution the principle of § 254 BGB applies [reference].

5. The provision of § 1359 BGB does not provide any guidance, since in principle it does not bear upon the duty of marital fidelity; it is also impossible to assume that as regards the latter, a spouse is only liable to apply the same degree of diligence as he applies to his own affairs. If this were so, the guilty spouse to a divorce would also have to be held responsible for every other pecuniary damage which the other spouse suffers as a result of the divorce. This conclusion is ruled out in all likelihood, despite the aim stressed generally by Beitzke ‘to tie a person to the marriage, once it has been concluded, by the threat of liability in damages’.

6. The liability to pay damages laid down by § 1298 BGB in respect of breach of promise referred to by Beitzke does not assist either. On the contrary, the fact that the legislature deemed it necessary to insert this provision appears to indicate that in principle claims for damages arising out of duties imposed by family law are to lie only when the law so provides expressly.

7. The enactment of this provision also militates against the assumption that a general duty to pay damages exists in family law, as Boehmer suggests now, while denying that liability in damages arises under §§ 823 ff. BGB in the case of a guilty spouse. However, until now such claims for damages, as well as those for the violation of other protected interests, have been based exclusively on these provisions, unless allowed expressly by other rules, and claims for damages have been denied in principle where § 1353 BGB has been violated [reference]. Provisions such as those contained in s. 151 of the Swiss Civil Code are unknown in German law.

8. Article 6 of the German Constitution (Fundamental Law) does not support a claim to damages either. Leaving aside that the marriage as such is not directly affected by the fact whether damages are paid after its breakdown or not, article 6 of the Constitution does not concern the personal relationship between the spouses. Boehmer, too, believes that by allowing claims for damages ‘no tendency towards the enforcement of the duty to comply’ is being shown.

9. Equally nothing can be deduced from the rules on maintenance after divorce; in so far as they concern the position of the wife, Beitzke describes them as being in total contradiction to Art. 3 of the Constitution. The question is, however, irrelevant in the present case, since the claims here are not brought by the wife.

10. Finally it remains uncertain, despite the arguments of Boehmer, how the amount of damages is to be assessed when a marriage has been broken up culpably. If the duty to reimburse the costs of the proceedings to contest the legitimacy of the child is to be based on the protective function of § 1353 BGB, as Boehmer seems to hold, no persuasive reason exists for denying the existence of a duty to pay damages for any other pecuniary losses arising from the break-up of the marriage, a result which Boehmer himself regards as ‘impossible’. Any general requirement such as that ‘the damages claimed must be limited to the protective purpose of the protective rule in question does not permit a clear assessment of the damages. The likely consequences of such a view would be many disputes, the outcome of which must be quite uncertain; such a result does not seem to be desirable for the law’s sake as well.’

V. The Court of Appeal holds that a claim for damages against the defendant in respect of the costs of the proceedings to contest the legitimacy of the child cannot be supported in law as distinct from the costs of divorce proceedings; in the latter case the mutual relations between the spouses provide the basis, the husband is faced in the first instance with his unfaithful partner, with whom prima-facie matrimonial matters should be thrashed out alone while the co-respondent figures behind the wife and can only be reached through the latter. On the other hand, the co-respondent was directly involved in the claim for damages in respect of the procreation of the child, and in the triangle formed by the relationship between the husband, the child, and the third party, the wife figured either not at all or only as a fictional centre. Therefore the issue was not the protection of the marriage as a community of life but the legal relationship between father and child. Moreover, the attack on the legitimacy of the child and the ensuing consequences were independent of the continuation of the marriage.

These considerations, too, cannot support a claim for damages against the defendant based on the costs of the proceedings to contest the legitimacy of the child. First of all, in considering the relations between the husband, the child, and the third party, the wife cannot be excluded; for these relations cannot exist without the wife and her unfaithful conduct, just as the third party and his adulterous relationship with the wife were decisive in the case of the divorce. Claims arising out of the procreation of the child fall therefore into the sphere of family law, just as much as those based on adultery and on a divorce ensuing therefrom. The fact that a marriage may continue independently of an act of adultery and of the bastardization of a child does not alter the nature of the claims arising therefrom which fall within the sphere of family law. Finally, if the third party were to be held liable in damages, the wife would be under a duty to contribute, as explained in IV(4), above.

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