BGH WM 2000, 2190 Bundesgerichtshof (fifth civil senate) V ZR 305/99
29 September 2000
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Raymond Youngs
Professor B.S. Markesinis


By a notarial contract of the 15th September 1995, the claimant bought from the defendant a house plot for 230,000 DM which he financed by a loan from the defendant's assisting party (Streithelferin) on the 10th October 1995 secured by a mortgage. The notary was instructed to transfer 30,000 DM to the defendant's son from the deposited purchase price.

The claimant claimed that at the conclusion of the contract he was not legally competent because of mental illness and demanded repayment of the purchase price subject to simultaneous return of the property. The Landgericht upheld the claim, after presentation of the evidence, subject to simultaneous return of property free of burdens. On the claimant's cross appeal, the Oberlandesgericht partially altered this decision, after further presentation of evidence, and upheld the claim without limitation in accordance with the claimant's last application. The defendant has lodged an appeal in law against this decision. The claimant applies for the rejection of this appeal.



3. Contrary to the view of the appeal in law, the sum to be repaid is not reduced by 30,000 DM. The agreement about the transfer of this sum related to furniture which the defendant's son and his life partner wanted to leave behind in the property sold. In this respect it was laid down in the trust agreement that the notary should pay this sum to the son from the deposited purchase price. But, contrary to the view of the appeal in law, this did not mean the claimant had to effect his performance partly in favour of the son. He owed (and paid) the whole purchase price of 230,000 DM only to his contractual partner, whose arrangements with her son did not concern him.

4. The appeal in law correctly objects however to the appeal court having ordered the defendant to repay the purchase price without limitation. Admittedly there is no objection to the legal starting point that the saldo theory (balance theory) has no application to the dismantling in enrichment law of a contract which is void because of the legal incapacity of a contracting partner (reference omitted). In so far as the judgment of the Senate of the 11th March 1988 (reference omitted) conflicts with this, it will not be followed, because the linking of the performances on both sides by the purpose of the exchange, which justifies the balancing (Saldierung), could not arise where there is no legal capacity. It therefore cannot be a determining factor in the dismantling. This does not however mean that the party who lacks legal capacity may retain the performance which was received by him and is still available (here the position of owner in accordance with the Land Register). He merely does not have to offer it on his own initiative, but can wait and see whether the contracting partner in this respect claims a right of retention (§ 273 of the BGB). This the defendant has done, as the appeal in law correctly argues. This has been overlooked by the appeal court.


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