OLG Hamm NJW 1993, 2321 20 U 249/92
08 January 1993
Professor B.S. Markesinis
Raymond Youngs


The claimant's husband concluded a life annuity insurance with the defendant in August 1984. It provided for a yearly premium of 1454.20 DM to be paid for seven years. That produced an agreed yearly annuity of 800 DM or a capital settlement of 10,797 DM. The due date was the 1st August 1991. In September 1985 the claimant's husband, who had paid two yearly premiums, died. The contract was converted to a non-contributory one in the ensuing period at the claimant's wish. On the 30th September 1986 the defendant announced that because of the non-contributory nature of the contract, the minimum annuity had not been reached and that the life annuity insurance was therefore converted, in accordance with the agreed insurance conditions, into a non-contributory endowment insurance. The endowment sum amounted to 3098 DM and was due on the 1st August 1991. Because of a change in rates, the claimant received, with a covering letter of the 14th December 1990, a new insurance certificate dated 31st December 1990 which showed a yearly annuity of 3099 DM instead of 800 DM. According to the defendant, the changes caused by the resetting of the rates were entered into the main frame installation via a special application which showed about 240 data fields in 49 screen pages. On manual input of the individual items of information from the separate contracts, in this case the final lump sum of 3098 DM was accidentally entered into the data field for the yearly life annuities. The defendant informed the claimant by a letter of the 18th July 1991 that the capital settlement amounted to 47,433.45 DM. Actually however the defendant calculates that the capital settlement should only be 4225.54 DM, and it paid out this sum to the claimant. The claimant claims the remaining sum of 43,207.91 DM in the action.

The Landgericht allowed the claim in full. The defendant's appeal, which claims that there had been a declaration mistake and in any event a relevant calculation mistake, is directed against this decision. The defendant's appeal was successful.


The claimant is not entitled to the claim made in the action, as the defendant has effectively avoided its declaration of will, which led to the conclusion of the contract, in accordance with § 119 (1) alternative 2 of the BGB.

1. The defendant by its letter of the 14th December 1990 submitted a contractual offer which in accordance with the enclosed insurance certificate involved a yearly life annuity of 3099 DM. However, the defendant did not intend to submit a declaration with these contents.

a) According to the defendant's version of events, which the senate is following in accordance with § 286 of the Civil Proceedings Order (ZPO), on the manual input of the data and the entries into the main frame installation, the amount of the endowment sum was accidentally entered into the space for the yearly annuity. On the basis of these data, the insurance certificate was then drawn up. Such a mistake cannot be assessed any differently from the case where the person responsible types something incorrectly when drawing up the insurance certificate. Such a mistake is subject to the rules about declaration mistake (references omitted).

Contrary to the claimant's view, the mistake does not relate to action merely preparatory to a declaration of will which is then individually drawn up. It is true that the insurance certificate has been separately drawn up in accordance with the previously altered data. But the mistake in the input of data did not only continue to have an effect in the drawing up of the insurance certificate, but went into this document unaltered. The incorrect annual life annuity was reproduced in the insurance certificate in the sum of 3099 DM unchanged. The case is not therefore different from when the declarant writes his offer incorrectly or makes a typing mistake. But that would be a declaration mistake (reference omitted). It is therefore not a case here of an internal calculation mistake in which the declarant works internally with incorrect data and then submits a contractual offer based upon it in error, which does not however repeat these defective calculation data.

The decisive factors for the assessment of a mistake are the ideas and intentions of the person acting in the last "human decision". This took place when the manual entries into the approximately 240 data fields were made. The person responsible made a mistake - he recorded something incorrectly - which then had an effect on the factually incorrect communication without further human involvement.

b) If the declaration of will leading to conclusion of the contract is therefore effectively avoided, there is no claim by the claimant because there is no contract. The defendant's letter of the 18th July 1991 does not on the other hand form the basis of any claim by the claimant and in particular it does not amount to an acknowledgement. It is merely concerned with the notification of the level and due date of the capital settlement.

This letter is not confirmation of the legal transaction avoided (§ 144 (1) of the BGB). That would assume that it could be deduced from the letter that the sender wanted to adhere to the legal transaction in spite of its voidability (reference omitted). That is not the case here. This letter is recognisably based on the insurance certificate of the 31st December 1990. There is no evidence to indicate that the defendant would already have recognised the incorrectness of the annuity sum which was stated at too high a figure.

2. As in the present case a declaration mistake is present, it can remain open whether on a different legal assessment the same result would have had to be reached because of an extended mistake as to content, because of § 119 (2) of the BGB or because of § 242 of the BGB (reference omitted).

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