R, a pensioner, owed money to both parties. The plaintiff's claims against him were secured by a notarial contract dated 23 October 1961, whereby R pledged to the plaintiff his share of a certain inheritance. The defendant, which had a claim of about DM 24,000 against R for costs, obtained a judicial order for security and payment against R on 16 October 1962, which attached R's share in the same inheritance for payment to the defendant up to that amount. On 12 July 1963, the real property belonging to the inheritance was auctioned with a view to division among the heirs. In the division proceedings a representative of the defendant opposed the payment out to the individual heirs and to the plaintiff, and the net proceeds were put on deposit by order of the execution court. The portion of the estate falling to R remained on deposit thereafter. Both parties applied to the depositee for payment out to them of R's part, but without success. The plaintiff then raised a claim against the defendant for an order requiring him to give his consent to the payment out to the plaintiff of the sum on deposit. The Landgericht Duisburg gave judgment for the plaintiff, and the defendant appealed. In the appeal proceedings the defendant counter-claimed, and on 13 March 1967 the Oberlandesgericht Düsseldorf ordered the plaintiff to give his consent to payment out to the defendant of the sum on deposit. The plaintiff's appeal against this judgment resulted in the reinstatement of the judgment at first instance (BGHZ 52, 99), and on 25 July 1969 the depositee finally paid out to the plaintiff the sum which had fallen due to R.

The plaintiff now claims damages for loss of interest, on the basis that the defendant had infringed his security right and had been at fault in doing so.

The Landgericht dismissed the claim and the plaintiff's appeal was dismissed also. The plaintiff was allowed to appeal further, and that appeal is now dismissed.

Reasons

I. The only basis of claim which the Court of Appeal considered was the claim in tort. In the long run, however, it left unanswered the question whether any delictual injury had occurred, for it was unpersuaded either that the harm was unlawfully caused or that the defendant had been at fault. The Court of appeal found against unlawfulness because it is in principle permissible and entirely lawful to institute legal proceedings in pursuance of supposed rights. Furthermore, there was no fault because the defendant could not be blamed for being wrong in law as he was. Until the final decision of the BGH in the prior proceedings, the defendant was entitled to believe in the correctness of its view of the law, namely that its own charge attached to the proceeds due to R and that the plaintiff's contractual pledge interest did not, for this was in line with the decisions of the Reichsgericht and the opinion of most commentators.

II. The appellant has not been able to fault this reasoning

1. It is not necessary to determine whether the requirements for tort are present here or not. The prior proceedings have made it clear that it was wrong to deposit the money in issue in favour of the defendant as well as of the plaintiff. This being so, the defendant was enriched without legal ground at the expense of the plaintiff; he was therefore bound under para. 812 BGB to make a declaration of release (BGH NJW 1970, 463 ...). If the defendant delayed doing so for a reason for which it is answerable (BGB paras 284-286) it must be liable in damages.

In these circumstances the defendant will be responsible for its failure to perform its duty to release the money in good time unless it made an error of law for which it is not to blame. As will be seen, the courts are reluctant to find that an error of law was made without fault; the criteria they apply are very strict, especially when it is a question of seeking to avoid the consequences of delay. If the criteria are satisfied, there can clearly be no finding of fault such as is required for liability in tort. Thus, like the Court of Appeal, we may leave aside the question whether any tort was committed or not, because as will be explained presently, the defendant was not at fault and is not answerable for its failure to fulfil its duty to release the money.

2. The Reichsgericht was originally opposed to treating any non-negligent error of law as an excuse for delay and it only modified its position in RGZ 146, 144. The Bundesgerichtshof, on the other hand, has always accepted this (see BGH NJW 1951, 398) but it has attached very strict preconditions to the excuse; in particular, it insists that the situation be such that a reasonable person exercising the care required in social intercourse would have expected the debtor to win the lawsuit in question (ibid.) Although its position has attracted some criticism (references omitted), the BGH has adhered to this view. What this court said in its decision on 4 March 1969 (LM to para. 276 (Bd) BGB no. 2) was concerned with whether the error of law on the actual facts of that case connoted fault or not, and is not in conflict.

But strict though the requirement of care is, one must not treat it as meaning that an unfavourable outcome on the legal question must have been positively inconceivable to the debtor; were this so, there would hardly ever be any room for the excuse. It remains true, nevertheless, that the debtor may not burden the creditor with the risk of a simply doubtful point of law (references omitted).

3. The strict criteria are satisfied in this case by the factors mentioned by the Court of Appeal as excusing the [defendant]. The legal position adopted by the defendant in the prior trial was that a contractual security right in part of a joint inheritance did not, when the community of heirs was divided, attach by way of real subrogation to the objects which replaced the undivided part of the joint inheritance. This was in accord with the wording of para. 1258 par. 3 BGB, the decisions of the Reichsgericht and also the views generally entertained by commentators then and since (RGZ 84, 395, 397; other references omitted). The court was therefore right to find no want of care in the [defendant's] conviction that it was entitled to the amount on deposit on the basis of its attachment, it being generally accepted that such a charge does attach by way of real subrogation to the division of an inheritance (BGHZ 52, 99, 105).

Nor was the Court of Appeal wrong in holding that under these circumstances the defendant could not be blamed for adhering to its view of the law although the Landgericht had decided against it and although the plaintiff had referred to a decision of the Oberlandesgericht Saarbrücken. As the Court of Appeal observed, invoking the comments of the Oberlandesgericht Düsseldorf in its judgment in the prior proceedings of this case of 13 March 1967, neither of these decisions is very cogently argued, and while they agree in the result with the Bundesgerichtshof's eventual decision in the prior suit, the reasoning is not the same.

4. The appellant is right to say that in view of the very low interest which is paid on sums on public deposit, it would have been better had the parties agreed to deposit the sum in issue elsewhere until the legal position was cleared up. But the defendant was not obliged to agree to this under any rule of law then in force, much less was it bound to make the sum in issue available to the plaintiff while reserving the right to reclaim it later.

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