BGHZ 97, 372 Bundesgerichtshof (ninth civil senate) IX ZR 200/85
17 April 1986
Professor B.S. Markesinis
Mr Raymond Youngs

The claimants were advocates for the defendant in a legal dispute conducted by him against Mrs S before the Amtsgericht and Landgericht K (the prior proceedings). In the action they are pursuing them claim for fees. The defendant claims that he is not liable to make payment because the claimants were liable to pay him compensation because of violation of their duties as lawyers.

The unmarried defendant was living from the end of 1977 onwards with Mrs S, who was single and 18 years old at the time. He describes the then relationship as a life partnership similar to marriage. The partners were agreed, at least until the end of 1980, that no child should be born from their relationship and that Mrs S should take contraceptive medication. In December 1980 Mrs S stopped taking this medication. She did not communicate this to the defendant. When he learnt of her pregnancy in March 1981, the relationship broke up. On the 3rd November 1981, the child Sv S was born. It has been established with legally binding force that the defendant is its illegitimate father. He was ordered to pay standard maintenance. The claimants had represented the defendant in the paternity proceedings. Mrs S had stated as a witness that she had really wanted a child by the defendant and had therefore no longer taken the "pill".

The defendant was of the view that he could demand compensation from Mrs S and ordered the claimants to represent his interests. He informed them that his agreement made with Mrs S not to have children was still valid at the time of Sv's conception. Mrs S had stopped taking the "pill" intentionally in order to have a child by him and to induce him to marry her. She had confessed to a witness that she had stopped taking the "pill" without his knowledge and against his will and thus "really taken him for a ride".

The claimants saw prospects of success for a claim for reimbursement of the standard maintenance to be paid to the child from the view point of a breach of contract. In this connection they proceeded on the basis that Sv S was an unwanted child on the grounds of family planning in the sense of the decisions of the sixth civil senate of the Bundesgerichtshof of the 18th March 1980 (reference omitted). They therefore advised the defendant to make a claim against his former companion.

In the claim, which was commenced in December 1982, the claimants presented the facts of the case described to them by the defendant and submitted the evidence. They explained that according to the case law of the Bundesgerichtshof it was necessary to proceed on the basis of the existence of harm, and the contract about contraceptive measures was effective. In summary, the claimants explained:

"If the defendant, as admitted, decides to stop taking the pill without the claimant's knowledge and contrary to the agreement in order to have a child with the claimant as its father, this represents conduct in breach of contract and giving rise to an obligation to pay compensation".

The Amtsgericht held the claim not to be convincing and rejected it. It doubted whether there was an intention to be legally bound on the part of Mrs S and whether any possible legal transaction was reconcilable with § 138 of the BGB and held the contract to be in any case void under § 306 of the BGB because the taking of contraceptive medication could not offer certain protection from conception. The court denied the existence of claims under §§ 823 ff. of the BGB.

In a letter in which the claimants informed the defendant about the loss of the legal action at first instance, they also stated that the court had "evidently not dared to tackle the delicate question of the assessment of the contract". They continued that it was "sensible and absolutely necessary to lodge an appeal against this judgment". The defendant gave instructions for this.

The claimants based their appeal on a repetition of their view of the law which had already been put forward. After the appeal court had set the amount of the claim at a higher sum, the defendant began to have doubts as to whether it was sensible, having regard to the poor economic circumstances of Mrs S, who was on social security, to take the appeal proceedings any further. He sought the claimants' advice on this and asked if it was not possible that although he was entitled to compensation "according to case law", he would never receive it "through lack of assets". The claimants answered that even in the event of obtaining judgment, the possibilities of a successful execution were very small. The defendant replied: "I would only withdraw the appeal on the ground of costs. On the other hand I would like to get my rights in order to set an example, so to speak". The claimants withdrew the appeal on the defendant's instructions and on his behalf. They calculated their fees on the basis of a sum in dispute of 15,000 DM. The defendant argued that the claimants were obliged to compensate him because they had conducted the prior proceedings without hope of success. This prevented a claim for their fees. In the present legal action the claimants are claiming their fees. The defendant in his counterclaim seeks reimbursement of the cost of proceedings paid by him.

The Landgericht rejected the claim and allowed the counterclaim. The Oberlandesgericht rejected the claimants' appeal. Their appeal in law, which was admitted, was unsuccessful.



The appeal court confirms the rejection of the claim, because the defendant was not obliged, according to § 242 of the BGB, to meet the claim for fees. The claimants were obliged to compensate him for culpable violation of their duties as lawyers.

The appeal court proceeds on the basis that lawyers have to examine the facts of the case communicated to them, to ascertain the legal prospects for their client's wishes, to inform him if the situation was hopeless and to advise him categorically against legal action in respect of unfounded claims.

The prior proceedings had had no prospect of success. A claim to compensation by the claimant did not automatically follow from the reasons in the so-called sterilisation cases decided by the Bundesgerichtshof on the 18th March 1980 (references omitted). These decisions did not contain any grounds which permitted the principles presented there to be applied to cases in which contraception planned by partners had failed. In these cases a grant of a claim to compensation would intrude in an impermissible manner into the intimate sphere of the partners which was protected within the framework of the general right of personality. In the comprehensive assessment which had to be undertaken, the defendant's interest had to take second place to the claim based on the personality. It could therefore remain open whether an agreement about contraception between partners in a relationship similar to marriage was legally effective or was void under § 306 or § 138 of the BGB.

These obvious legal issues had not been taken into consideration by the claimants in their advice. This laid them open to the charge of breach of their duty of care required under § 276 of the BGB. They had to advise the defendant against making a hopeless claim. But instead of this they had not even drawn his attention to the special risk involved in the proceedings.


The appeal in law challenges this, but without success.

1. If a lawyer is given instructions to pursue alleged rights of his client against a third party, it is incumbent upon him to examine whether his client's wishes can be achieved in the light of the facts of the case (references omitted). If a claim is practically hopeless, the lawyer must advise against the commencement of it. If the client still wishes to pursue the claim, the lawyer must clearly emphasise the risk of proceedings. If the client adheres to his decision to pursue the claim after such a strong warning, the lawyer can comply with this without violating his duty to his client (reference omitted). Even if the client's wishes could be achieved on the basis of a view of the law which can be easily justified, but the legal situation is doubtful, perhaps because an established line of case law has not yet formed, the lawyer must explain and discuss with his client the doubts and reservations to which the legal situation gives rise. The further steps he takes must depend on the decision which his client must make after this warning (references omitted).

2. The claimants have violated these duties.

a) It is indisputable that they have advised the defendant in favour of this legal action and the lodging of the appeal because they regarded the prospects of success for what he sought as promising. In the grounds of their appeal they have stated that they had advised him that claims and counterclaims could arise from the binding agreement between him and Mrs S. This convinced the defendant at the appeal stage of the prior proceedings that he was "entitled to a claim for compensation according to case law" and that he would only refrain from "getting his rights" because of economic considerations.

b) The claimants' advice to go through with the prior proceedings, which was given without any explanation about the special risk, would only have been in accordance with their duty if the legal situation had given rise to no doubts or reservations. But that was not the case here.

aa) There was no prospect of a contractual claim to compensation being granted in respect of a breach of an agreement by the partners that no child would be produced from their life partnership and that Mrs S was therefore to take contraceptive medication.

Even the presence of an appropriate agreement constituting a legal transaction appears extremely doubtful.

A legal transaction comes into existence by the giving of corresponding declarations of will. A declaration of will is present if the declarant is conscious of giving a binding declaration in respect of a legal transaction, or if the declaration might according to good faith and customary behaviour (Verkehrsitte) be regarded as a statement given with the intention of being legally bound (reference omitted).

The agreement by Mrs S, that she would take contraceptive medication to prevent a pregnancy, should not as it stands be understood in accordance with customary behaviour as a declaration by which she intended to bind herself legally.

If there are no legal or economic hindrances to the partners of a life partnership which is not a marriage entering into a marriage - and it is necessary to assume that this is the case here - they generally deliberately renounce the legal ordering of their relationships which the institution of marriage provides. They do not want to subject their free partnership to legal provisions (references omitted). In general partners of such relationships therefore base their relationships on their individual concepts of morals and decency as well as on feelings and trust. They do not want a legal regime for their personal and economic relationships (references omitted). Legal commitments to the regulation of property law relationships between the partners are therefore the exception (reference omitted). It is even less likely, according to the general view, that the partners would want to make their personal intimate relationships the subject of contractual commitment.

The claimants had not discovered whether the defendant had also regulated his other personal and especially his mutual economic relationships with Mrs S contractually. If there was no such regulation of the partnership relationship, an arrangement about, of all things, the closest personal relationships would not, without other factors, appear to an objective assessor (reference omitted) as a separate agreement which was intended to be legally binding.

In the prior proceedings the Amtsgericht has therefore correctly doubted whether, on the facts of the case as presented by the claimants, an intention on the part of Mrs S to be legally bound was present.

But even if it could be assumed that Mrs S had taken part in the agreement by consciously giving a binding declaration in a legal transaction, this legal transaction would not be effective because the most intimate realm of personal freedom encompassed by it is exempt from contractual regulation.

It is part of the personal worth and the personality right of the partners who have sexual intercourse with each other always to be able to decide again freshly and freely to have a child. They must therefore remain free in their decision whether to use contraceptive methods to avoid a pregnancy. This freedom of decision concerns the innermost core of their personality and its development in self-determination (reference omitted). It follows from this that a partner cannot effectively commit himself in advance in a legally binding manner to the regular use of a method of contraception.

If a partner is no longer prepared to co-operate in contraception, no contractual claim to compensation can be derived from this, even if he does not communicate this to the other partner, because his intimate sphere would be unreasonably affected as a result.

bb) Contrary to the view of the appeal in law, the conduct of Mrs S as asserted by the defendant did not form the basis of any claims in tort either.

§§ 823 ff. of the BGB attach the consequence of liability to conduct which contradicts the basic moral conceptions and principles of order in communal life (reference omitted). The intimate sphere of two partners of full age who by voluntary sexual intercourse not only satisfy their sexual need but take responsibility for the coming into existence of life is not in principle subject to the law of tort in the case of birth of a child, even if one partner has in this connection deceived the other about the use of contraceptive measures.

Moreover, in the present case this is also required by the interests of the child. The defendant's son lives with his mother, Mrs S, who cares for him, brings him up and thereby provides him with maintenance in accordance with § 1606 (3) of the BGB. In this connection he naturally participates in all the conditions of his life in the circumstances of his mother's life and her living standard. Because of his own father's demand for compensation, he would have to suffer substantial personal, psychological and economic restrictions up to the end of the period when he needs maintenance. The child would have to feel and experience the financial and emotional burdens of its mother. These effects would be especially grave in the case of enforcement of the claim against its mother. She would possibly be induced by her maintenance burden, which in the end result is doubled, to seek employment of a kind which would no longer safeguard the interests of the child. The causes for emotional and financial burdens of this kind will not remain hidden from a child whose mother is exposed to them. The child's knowledge, which is necessarily associated with this, of the fact that it by its own existence it has caused liability to the father on the part of the mother adversely affects the human dignity to which the child is entitled.

3. The claimants have culpably breached their duty to advise prior to the proceedings because they have failed to have regard to the duties of care incumbent upon them as lawyers within the framework of the client contract (§ 276 of the BGB). They did not take into account general methods of legal science in examining the prospects of the action's success and therefore did not recognise the doubtfulness in law of the claim submitted. They have therefore not even drawn the defendant's attention to the substantial risk in the legal dispute and have in fact given him the idea that he has a claim "according to the case law".

The claimants have advised the defendant according to their own submissions on the basis of the decision of the sixth civil senate of the Bundesgerichtshof of the 18th March 1980 (BGHZ 76, 249; 259). They have thereby failed to recognise decisive and clearly recognisable differences in the nature of the case. In the starting point for their advice and for their submission in the case they have considered the question of whether a child can be "harm" in an inaccurate methodological way. Admittedly the claimants may have correctly recognised that a claim in tort could not be considered as the legal basis for the action. But they did not find any sufficient basis for a contractual claim to compensation and therefore did not recognise crucial problems which created the risk in the proceedings. They have not put forward concrete grounds for an intention to be legally bound. It must however have been known to them that the Bundesgerichtshof (reference omitted) and an overwhelming part of the literature (reference omitted) see in the renunciation of marriage by the partners of extramarital partnerships the documentation of their decision not be legally bound. They therefore demand special grounds for the presence of an intention to be legally bound to the regime for legal transactions in property law relationships. The claimants should therefore have expected that the submission that the partners had agreed in the "most binding way" that their relationship should be childless would not simply suffice as an explanation of the existence of an intention to be legally bound which was comprehensible to an objective assessor. The claimants also obviously did not see any doubts on the extent to which the object of the commitment could form the subject matter for a legal transaction; in any event they did not disclose any risks in the proceedings in this respect.

The nature of the case in the decisions of the sixth civil senate on the claim to compensation for harm in respect of a failed sterilisation (which were seen by the claimants as relevant) deviated crucially from the present one simply because Sv S was in no way an unwanted child; he was merely not wanted by one of his parents. The observations on the law presented by the claimants in the prior proceedings to the effect that that Sv was just as much an unwanted child as were the children for whose birth the sixth civil senate had granted compensation in each case to both parents were incorrect. It did not conform to the conscientiousness expected of a lawyer to base a claim on a parallelism in the nature of the facts of the case where this was clearly not present.


1. The appeal court saw the harm suffered by the defendant in his liability for the claimants' costs and the other fees due from him in respect of the prior proceedings and claimed in the counterclaim, or in the payments made by the defendant to the claimants. This is correct.

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