The plaintiff's grandmother (the testatrix) died on 13 March 1962 when the plaintiff was ten years old. She left her estate to her three daughters. One of them was the defendant, and aunt to the plaintiff. The testatrix left two savings bank books, one of the Stadtsparkasse (municipal savings bank) the other of the Kreissparkasse Köln (Cologne District Savings Bank) both made out in the name of the plaintiff. The defendant took both savings books. After the start of the court action, she relinquished one of these to the plaintiff. This litigation concerns the Kreissparkasse savings book. There is DM 9 554.17 in the account. The lower courts have rejected the claim for surrender of the book. The plaintiff's further appeal is successful.

Reasons

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3. In assessing the evidence, the only question that arose was whether or not the testatrix and the District Savings Bank concluded a contract in favour of the plaintiff (para. 328 BGB) with the effect that the plaintiff ab initio owned the claim against the bank in respect of the funds, i.e. both the opening balance and later payments. The facts raised the question of whether the testatrix only intended to leave the savings account as a bequest to her grand-daughter with the result that she became owner of the savings account only at the death of the testatrix, unless of course the testatrix had otherwise disposed of it.

a) The fact that such a bequest is possible through a contract between living persons and without the need for the formal requirements requested for wills and testaments can directly be deduced from paras 328 II, 331 I BGB (RGZ 106, 1 et seq; BGHZ 41, 95; BGH NJW 1965, 1913; BGB-RGRK para. 516, No. 29). There is no need once again here to discuss the counter-arguments put forward by Boehmer (Staudinger/Boehmer, Erbrecht, 11. ed. Introd. para. 27), Coing (Kipp/Coing Erbrecht, 11. ed., para. 81(IV) and (to a certain degree) by Lehmann (Staudinger/Lehmann, BGB, 11. ed., before s. 1937, No. 14). But in order to assume that the opening of a savings account in a third person's name constitutes a case as envisaged by para. 331 BGB, the contract between the saver and the savings bank must show that the saver wishes to bequeath the funds on his/her death. The savings bank must also have intended this effect. There is, however, no need for very strict demands in respect of this point. When a savings contract is concluded, the savings bank allows the saver to decide which person is entitled to the savings and at what point, and does not influence the decision. Savings banks accept any instructions from the saver as to who shall have a claim to the funds (see RG LZ 1932, col. 955). According to para. 808 BGB, by payments made to the holder of the savings book, the savings bank is freed from any claims brought by the person actually entitled to the funds. In deviation from other contracts, for instance giro accounts, where, in the interests of the contractual party who enters an obligation, it must be unambiguously clear who in fact is entitled under the contract, in the case of savings contracts it is sufficient that the person entitled to the savings is somehow identifiable from the contract, though not necessarily clearly and specifically, so long as it is eventually possible to identify without doubt who the beneficiary is and under which conditions he/she becomes entitled.. Where later on several persons make a claim for the funds, the savings bank can rid itself of any obligation by payments made to the holder of the book. But the bank can leave it to the various claimants to settle the question of entitlement amongst themselves or if necessary with the aid of the courts, and then to pay the person which the court decision names as successful claimant.

b) The typical feature of this case lies in the fact that a close relative (grandmother) opened the savings account in the name of her relative, who was still a child (grandchild), without handing over the savings book and, as must be assumed, without informing the beneficiary that a savings account had been opened in her favour.

As already explained in detail (see above under 2c), such behaviour must normally be interpreted as indicating that the saver wishes to retain the right of disposition until her death. On the other hand it cannot normally be assumed that the grandmother's intentions to name her granddaughter as entitled party should have no legal consequences whatsoever (see Mordhorst, 'Spareinlagen auf fremden Namen' MDR 1956, 4 6; Ritter, Der Sparvertrag auf den Namen eines Dritten, Erlanger Diss., 67 et seq.). Unless the circumstances of the case indicate otherwise, by opening the savings account in the grandchild's name, the grandmother expresses her intention, irrespective of her continued right of disposition, to bestow the savings bank deposits, or what is left in the account at the time of her, i. e. the grandmother's death on her grand-daughter and that she therefore intends to give her grand-daughter preferential treatment to the detriment of her heirs her other heirs. It could have been precisely for this reason that the testatrix, immediately before her death, announced her intention of bestowing DM 40,000 on the plaintiff a fact which, for the purposes of this further appeal can be assumed as proven. In view of this aspect of the case, the court of appeal needed to consider the plaintiff submissions to this point.

c) It is possible to bestow funds on a third person under para. 331 BGB by opening a savings account in that other person's name (see OLG Kiel, LZ 1919, 971). It is not prohibited just because the saver and the recipient did not conclude a legally valid agreement clarifying the rights in the savings account (Valutaverhältnis) with the result, as far as the heirs are concerned, the entitlement to the savings account was received without legal basis and consequently gives rise to the heirs' claim for unjust enrichment. However, in its decision, reprinted in NJW 1965, 1913, at 1914 (= WM 1965, 748), the Bundesgerichtshof has pointed out that the naming of the beneficiary can constitute the saver's offer to the beneficiary to bestow funds on him/her (promise to make a gift or conditional gift) which the beneficiary can accept even after the saver's death (paras 130 II, 153 BGB); an offer which, under para. 518 II is not subject to any formal requirements, since the gift was already made when the offer was accepted (see also Erman/Westermann, BGB, 3. ed.; para. 331, note 4.)

4. Under para. 564 ZPO, the appeal court's decision had to be quashed. The court of further appeal cannot give a final ruling, since it cannot itself establish exactly for which purposes the testatrix opened the savings account in the name of the plaintiff. This point needs clarified by the court of appeal to whom the case is returned under para. 565 ZPO. In further hearings, the parties will be given the opportunity to make supplementary submissions and to raise further claims in the light of the above findings. Whether or not the testatrix, by opening the savings account, intended to make a disposition under para. 331 BGB can only finally be ascertained by close inspection and interpretation of the relationship between the relatives, especially the relationship between the testatrix and her daughters ( the heirs) and, on the other hand, her relationship to the plaintiff, her grand-daughter. Any ill effects from remaining doubts and uncertainties must be borne by the plaintiff.

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