BGHZ 145, 52 Bundesgerichtshof (fifth civil senate) V ZR 82/99
14 July 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


The defendant's legal predecessor (the testratrix) bought leased accommodation from the claimant on the 15th February 1993. She obtained a legally effective judgment of the Kammergericht on the 12th December 1995, according to which the claimant had to pay back the purchase price of 1,240,000 DM together with 4% interest from the 15th April 1994 simultaneously with retransfer of the land. The Kammergericht established that the claimant had deceitfully concealed from the testatrix the fact that the attics had been extended without the necessary permission for human habitation purposes. The avoidance of the contract declared by the testatrix on the ground of deceit had therefore taken effect. The claim to payment of further interest on the purchase price was rejected by the Kammergericht on the ground that the submission that the testatrix claimed bank credit at 8% interest was too general to justify an award a claim to compensation under §§ 291, 288 (1) sentence 2 of the BGB. By a notarial contract of the 12th July 1996, the parties declared the land to be retransferred. On the 1st August 1996 the claimant paid back the purchase price and paid the interest which was the subject of the judgment from the 15th April 1994 (113,667 DM). The possession of and benefits (Nutzungen) from the land passed on this day to the claimant.

The claimant has demanded from the defendant and the testatrix rental income from 1993 to 31st July 1996 in the sum of 409,648.13 DM (really 409,657.13 DM). She allowed expenses in the sum of 102,220.06 DM to be taken into account against this and demanded payment of 253,922.64 DM plus interest (with a set off for a claim to reimbursement of costs by the defendant from the previous proceedings of 53,505.43 DM). The Landgericht rejected the claim.

On appeal the claimant took into account the cost to the defendant of interest from the financing of the purchase price for the period from 1993 to 15th April 1994 in the sum of 86,933.11 DM. Taking into consideration the now indisputable more extensive expenses of 181,149.90 DM and the defendant's claim to reimbursement of costs, she has demanded the payment of 88,068.69 DM plus 4% interest from commencement of the action onwards. The defendant has charged the claimant for the period from the 15th April 1994 to the 31st July 1996 for further interest from the financing of the purchase price in the sum of 210,045.17 DM. Subsidiarily to this, she has declared a set off with claims to reimbursement of tax advice costs in the sum of 3,294.41 DM and to payment of interest in the sum of 330,666.66 DM, which the claimant had saved from March 1993 to June 1996 by repaying a credit of her own with the purchase price. The Oberlandesgericht ordered the defendant to pay 84,774.28 DM plus the interest demanded, deducting the tax advice costs. The defendant's appeal in law, by which she seeks the complete rejection of the claim, is directed against this. The claimant demands the rejection of the appeal.




The appeal in law is successful.

1. In dismantling a void mutual contract (here the purchase contract of the 15th February 1993 which was avoided by the testatrix) according to the provisions about unjustified enrichment (§ 812 (1) sentence 1, § 818 (1) to (3) of the BGB), the movements of assets on both sides do not, in principle, provide an independent basis for claims to delivery (Herausgabe). Instead from the outset there is only a standard claim to delivery of the surplus of assets over liabilities, which belongs to the party in whose favour a balance is calculated (references omitted). This claim alone (and not the individual item which goes into the balance) can be the subject of a set off against another claim of the enrichment debtor. The set off of the claim to delivery of the benefits drawn by the defendant / the testatrix from the subject matter of the purchase (rent; reference omitted) against a claim by the defendant to compensation for interest costs for the financing of the purchase price (86,933.11 DM for the period from 1993 to the 15th April 1994) is therefore subject to the priority of the balancing (Saldierung) with the claim by the defendant to the payment of the interest saved by the claimant (330,666.66 DM). Only a balance in enrichment law would result in an independent claim which could be set off by the claimant against a claim to compensation by the defendant. Conversely, it was not permissible to consider the defendant's set off declared in priority with a claim to compensation on account of further financing costs (210,045.17 DM for the period from the 15th April 1994 to 31st July 1996) before the balancing of the benefits drawn by the defendant (rent) with the claimant's saving of interest (repayment of liabilities with purchase price funds). The fact that the defendant has claimed the claimant's saving of interest with the "subsidiary set off" is not inconsistent with this. This is because the inclusion of a balance item in the enrichment settlement (Bereicherungsausgleich) is not open to the set off. The appeal court would therefore have had to consider at the outset the loan interest which the claimant saved which is indisputable as to part of the sum amounting to 178,666.66 DM (8% interest from a loan of 670,000 DM for the period from March 1993 to June 1996) and subjected to proof by the defendant as to the remainder.

2. The legally effective rejection by the Kammergericht of the defendant's claim over and above 113,667 DM for reimbursement of her own credit interest is not inconsistent with this. The claim to replacement of her own credit expenses, regardless of the legal ground on which it is claimed, does not have as its subject the interest saved by the opposite side.

3. The saving of interest by the claimant which is to be put into the balance is certainly satisfied by the sum of 113,667 DM.

a) For the balancing in an enrichment settlement, the Senate has decided that the purchaser cannot charge the seller the benefits taken from him in accordance with § 818 (1) of the BGB and his own interest expenditure in accordance with § 818 (3) of the BGB. The latter is denied him in accordance with the typical risk situation for purchases (reference omitted). Admittedly it is not possible to draw from this the inference that a claim to compensation which has accrued to the purchaser on some further ground would be barred to him in so far as it has his own interest expenditure as its subject. Unjustified enrichment and compensation are different in their prerequisites and claim content. There is no displacement of the one claim by the other in the sense of competing statutory provisions. The benefits drawn from a purchase price received without legal grounds are to be handed over by the seller because the investment from which they have flowed does not belong to him according to the legal order (§ 818 (1) of the BGB). He has to reimburse the purchaser for the interest found for the financing of the purchase price because he has inflicted harm upon him in an attributable manner. The duty to compensate exists independently of whether the seller has drawn a benefit from the performance received; the benefits are to be handed over even if no harm has arisen to the purchaser.

Regardless of this, the items included in the enrichment balance (Bereicherungssaldo), if they reduce the duty of the debtor to deliver, can at the same time bring to the settlement items of loss for which he can demand compensation on their own merits (reference omitted). Such a relationship exists between the benefits (income) obtained by the seller and the interest expenses of the purchaser in so far as the purchase price was obtained from the resources of others. Within this scope, the interest which the purchaser pays on his credit represents the economic equivalent of the benefits derived by the seller. If these benefits have flowed back through the enrichment settlement into the purchaser's assets, the loss of interest is eliminated to an equivalent extent. Different considerations apply in so far as the purchase price was raised from the purchaser's own resources. Here it remains a question of the fundamental relationship of the two claims. There is no internal reason for counting benefits which the seller has obtained from the purchaser's own resources which were received without legal grounds, in a case where the seller has to hand them over, against credit interest which the purchaser had to pay for further parts of the purchase price (or for other purposes) (reference omitted). The purchaser's additional expenditure exceeding the benefits obtained (excessive credit interest) is also not covered by the settlement of the benefits (Vorteilsausgleich).

b) The claim to compensation for credit interest of 113,667 DM which was awarded to the testatrix with legal effect accordingly did not belong to her. This is because, according to the defendant's case, the purchase price had been raised fully by credit for which interest was to be paid which equalled the savings by the claimant. The legal effectiveness of the decision of the Kammergericht has as a result, however, that in the relationship between the parties it is necessary to proceed on the basis of the existence of a claim to compensation, and the priority of the balancing of the benefits obtained by both sides therefore does not take effect. By the repayment of the demand for compensation which was granted, because of the equivalence relationship of the interest on the credit with the savings of interest by the claimant, her enrichment is traced back to the defendant's assets; the defendant's impoverishment is inapplicable to the same extent. Accordingly the sum of 113,667 DM is to be deducted from the claimant's benefits (330,666.66 DM under the law applying to the appeal in law). Her claim to handing over of the rent is to be balanced at the most with the benefits derived from the purchase price in the sum of 216,999.66 DM.

4. It follows from the above that the sums charged on both sides with the defendant's claims to compensation (defendant: 210,045.17 DM) and against them (claimant: 86,933.11 DM) - from the point of view of the law applying to the appeal in law - reduce to nothing. There is no room for these claims beside the balancing which occurs by virtue of statute. If, according to the assessment of the appeal court as judge of fact, the claimant's savings of interest were to fall short of the defendant's loss it will need to be examined to what extent the defendant's claims to compensation which come into question (1) because of the claimant's delay in the payment back of the purchase price and (2) because of fault on conclusion of the contract (silence about defects) are disallowed by the judgment of the Kammergericht. In this connection the appeal court will have to adhere to the sequence of the charges made by both sides and the subject matter of each.

5. If the appeal court should have to proceed on the basis of a liability under the general provisions because of the knowledge of the one or other side of the avoidability of the purchase (from certain points in time onwards) (§ 819 (1) in combination with § 142 (2) of the BGB), this would still in principle have no effect on the relationship in this case. Benefits which someone culpably neglects to obtain, which according to §§ 292, 987 (2) of the BGB are to be replaced, do not come into consideration. Certainly after the onset of increased liability any reference to the cessation of the enrichment (§ 818 (3) of the BGB) has to be ruled out (references omitted). It did not lead, however, in the relationship between the parties to any effects going beyond the balancing of the movements of assets on both sides (reference omitted). Finally, none of the cases are present in which the balancing gives way to the interests of the party who was deceived ([reference omitted] inability of the party deceived to return the performance received).

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