BGH NJW 1999, 2883 XI. Civil Senate (XI ZR 277/98)
29 June 1999
Professor Basil Markesinis
Raymond Youngs


The claimant demands from the defendant the remainder of a savings account credit balance, which the defendant paid out to a person authorised by the claimant. The claimant, who was at that time aged 70, had a savings account at the S savings bank which, in early 1992, showed a credit balance of about 150,000 DM. In April 1992, she opened a savings account with the defendant, for which she gave a full power of attorney to her doctor, Dr D. According to her evidence, he had offered to the claimant that he would invest her savings at a higher rate of interest with a bank in Luxembourg, and claimed that a minimum sum of 200,000 DM was necessary for this. The credit balance invested in the S savings bank was transferred in May 1992 to the new savings account with the defendant. Besides this, the claimant took out a loan in the sum of 50,000 DM from the S savings bank. The claimant gave the amount of the loan to Dr D, who paid it into the claimant's savings account with the defendant. The savings account therefore showed a credit balance of a total of 203,041.90 DM. A few days after the transfer of the credit balance, Dr D's wife terminated the savings account. She arranged for 3,040.90 DM to be paid to her in cash. She paid 200,000 DM immediately to the defendant to discharge loans owed to it by her husband. Dr D, who had intended to use the money in this way in breach of the agreement from the start, was amongst other things given a total sentence of three and a half years for deceit in respect of it. In an action between the claimant and Dr D, Dr D made a commitment in a settlement to pay a part sum of 80,000 DM, and this payment was made. The claimant demands from the defendant reimbursement of the remainder of her loss in the sum of 121,040.90 DM. The claimant is of the view that the defendant should not have made the payments to Mrs D, so her (the claimant’s) claims to repayment of the credit balance continued to exist. The defendant claims that the payment out of the credit balance had effected a release, because the claimant had granted Dr D a comprehensive power of attorney in respect of the newly opened savings account.

The Landgericht rejected the claim. The appeal court amended the judgment of the Landgericht, ordered the defendant to pay 50,260.22 DM, and rejected the claimant's appeal in other respects. The claimant is pursuing her case further in the appeal in law. The defendant by its cross appeal seeks the complete rejection of the claim. The claimant's appeal in law was well founded. The defendant's cross appeal was unsuccessful.



1. (...)

2. These deliberations do not stand up to legal examination. The claimant, as creditor in respect of the credit balance, has a claim to the payment out of her credit balance (§ 607 of the BGB). The appeal court did not take into consideration the fact that the claimant was not obliged to let the withdrawal by Dr D's wife, on the instructions of Dr D as the person authorised to operate the account, take effect against her, the claimant, as he misused his authority.

a) According to the consistent case law of the Bundesgerichtshof, the principal must in principle bear the risk of misuse of an authority. The contracting partner does not have a duty to examine whether and to what extent the agent is bound in the internal relationship (with the principal) only to make limited use of his agency power - which is unlimited as against third parties. The principal is however protected in his relationship with the contracting partner against a recognisable misuse of the agency power, if the agent has made use of his agency power in an obviously dubious manner, so that the contracting partner must have well-founded suspicions of a violation of good faith by the agent against the principal. A substantial incriminating circumstance is necessary here, presupposing objective evidence of misuse (references omitted). The objective evidence will in particular be present when, in the given circumstances, the need for the other party to the transaction to query this with the principal is simply unavoidable (see Schramm in Bankrechts-Hdb § 32 marginal no 24 with further references).

b) These prerequisites are present here. It is true that establishing them is a matter for assessment by the judge of fact, and can only be examined to a limited extent in appeal in law proceedings. But, in any case, the issues of whether the concept of objective evidence was misunderstood, and whether significant circumstances were left out of account in the assessment, are subject to examination. If that is the case, the court determining the appeal in law can undertake the assessment itself, if the findings of the appeal court give - as here - a completed picture of the facts (see, on this, Senate NJW 1992, 316 [317] = LM H 6/1992 Art 16 WG no 5).

The defendant knew that the credit balance invested by the claimant with it had been increased by 50,000 DM to 200,000 DM by the take-up of a loan to the claimant. The claimant gave to her doctor (and not, for instance, to a member of her family) a comprehensive power of attorney. This was used only a short time after the opening of the account (and only a few days after the crediting of the main sum of 150,000 DM) to terminate the savings account in order to discharge personal loan obligations by the attorney to the defendant. As the appeal court correctly emphasises, if the claimant had wanted to discharge the personal debts of her doctor with the credit balance, there would have been simpler ways of doing it. This is not a question of a normal everyday event in banking business. The event is so striking that suspicion of a misuse of authority should have forced itself on the defendant as the claimant's contractual partner. The use of an authority for one's own purposes as a rule gives cause for paying attention. In the circumstances present here, there were strongly suspicious elements which indicated a diversion of the sums of money withdrawn, and suggested that the agent wanted to siphon these away from the principal in abuse of his authority. The defendant should have in particular been distrustful because it was a savings account which had built up a substantial credit which the person entitled usually intends to use for his own investment purposes, and not to discharge the debts of the person with power to operate his account. These doubts necessitated the raising of questions with the claimant. The defendant should, in view of this, have set aside its own financial interest in the discharge of the loan granted to the attorney.

c) As this is a case of misuse of authority, the defendant does not deserve protection for its reliance on the existence of the agency powers. The claimant as principal does not have to permit the agent's legal transactions to take effect against her (consistent case law - see senate [references omitted]). The claimant's claim to have the contents of the account paid out to her was not extinguished by the withdrawal by the attorney, and still exists.

d) There is a single case in which the view was put forward that, on misuse of an authority, the disadvantageous results of the agency were to be split in accordance with the fault existing on both sides, applying the legal concept in § 254 of the BGB (references omitted). There is no need to decide whether this view should be followed. The claimant's grant of a power of attorney cannot by itself be rated as a culpable co-operation in the misuse of the authority. (...)

3. (...) The whole of the claim should be allowed. (...)

Back to top

This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.