BGHZ 118, 383 XII. Civil Senate (XII ZR 119/91)
17 June 1992
Professor B.S. Markesinis
Mr Raymond Youngs

I. Amtsgericht Neuwied

II. Oberlandesgericht Koblenz

The claimant, whose marriage with the defendant has been legally terminated, demands from her the repayment of overpaid maintenance on the basis of unjustified enrichment. In the procedural settlement of the 8th November 1985 he had committed himself to make a monthly maintenance payment of 1800 DM. He had demanded the amendment of the procedural settlement and the reduction of his obligation to pay maintenance to 850 DM a month from the 1st September 1986, claiming that his income as a transport contractor had substantially reduced. The Amtsgericht had rejected the claim. On his appeal, the Oberlandesgericht by its judgment of the 19th December 1988 had reduced the maintenance to 1620 DM per month for the period from the 1st September 1986 to 1st (should be 31st) August 1987, 1351 DM for the period from 1st September 1987 to 31st July 1988 and 1546 DM for the period from 1st August 1988. In doing so, it had admittedly established that the defendant had a greater need for maintenance than 1800 DM per month, but had attributed to her a fictitious income from a part time employment which she was able to undertake besides looking after their child. During the amendment proceedings, the Amtsgericht had by its decision of the 10th October 1986 provisionally reduced the execution of the settlement to 1000 DM per month against a security by the claimant. But it revoked this decision on the 13th March 1987. A challenge by the claimant and a new application for suspension of the execution were unsuccessful. On the 25th March 1987 the claimant released the security which had been provided. The claimant has demanded an overpayment of 7130.40 DM. The defendant has not disputed the amount of the excess payment, but has referred to the disappearance of the enrichment. The Amtsgericht ordered the defendant to pay 6630.92 DM together with interest and rejected the claim in other respects. On the defendant's appeal, the Oberlandesgericht rejected the claim in its entirety. The claimant's appeal in law was unsuccessful.



The appeal court has correctly proceeded on the basis of an enrichment in accordance with § 812 para 1 sentence 2 1st alternative of the BGB. When maintenance payments are made which are not owed, in principle a settlement under the rules about unjustified enrichment takes place. This has been assumed by the senate so far, amongst other cases, in respect of maintenance payments on the basis of an interim order in divorce proceedings, if they relate to maintenance which is not substantively due or are beyond the level of such maintenance (references omitted). It has also been assumed in respect of maintenance payments by the putative father to a child, if his illegitimacy has been established in a legally binding manner and the duty to maintain which was there to start with has ceased to exist with retrospective effect (references omitted). Corresponding considerations apply for maintenance payments which are made on the basis of a procedural settlement. In so far as this is amended retrospectively in accordance with § 323 of the Civil Procedure Order in favour of the maintenance debtor, the legal basis for the maintenance paid so far falls away (§ 812 para 1 sentence 2 1st alternative of the BGB). The maintenance debtor can then in principle demand the handing over of what has been obtained or compensation for its value in accordance with § 818 para 2 of the BGB. As the claimant has paid more to the defendant during the time mentioned than he was obliged to under the amending judgment of the Oberlandesgericht, he has in principle a claim to repayment of what was paid without a legal ground.


The claim fails however due to the fact that the defendant is no longer enriched (§ 818 para 3 of the BGB) and is also not subject to a stricter liability in accordance with §§ 818 para 4, 819, 820 of the BGB.

1. On the question of the defendant no longer being enriched, the appeal court has established, with the help of the extracts from accounts and credit documents submitted by the defendant, that she - with the exception of debt payment instalments - had used up all the claimant's maintenance payments for her current living expenses. There was no evidence of debits which could lead to the conclusion that savings were being accumulated. Other resources which she could have saved as a result of using up the maintenance payments would not have been available to her in the period in question. Even the funds from a loan which was taken out in 1980 and increased in May 1986 had already been paid out by her to purchase a used car in June 1986 (and therefore before September 1986). No continuing enrichment arose from the ownership of the car, as nothing suggested that the defendant would have disposed of it again to support herself if the claimant's maintenance payments had been smaller. Admittedly the defendant had constantly paid 267 DM monthly towards the loan since 1980 (and also during the period in question). But from the outset she had not been enriched by the amount of the debt paid off, because she had paid these instalments under the constriction of her other needs, and in the period when she had only received a smaller amount of maintenance because of the provisional suspension of the execution. She had not therefore made the payments from the overpaid instalments, but from the basic sum of the maintenance, and used up the overpayment without legal grounds for a more expensive lifestyle. The necessary causal connection between the overpayment and the payment of the debt was therefore lacking.

This assessment stands up to legal examination.

a) Under § 818 para 3 of the BGB a duty to hand over what has been obtained or compensation for its value is excluded in so far as the recipient is no longer enriched. The provision serves to protect the person enriched who acts "in good faith" and who has used up what he has received without legal grounds, trusting in the existence (or continued existence) of a legal ground. He should therefore not be obliged to hand over or provide compensation for value over and above the amount of a real (or real remaining) enrichment (references omitted). In the case of an overpayment of maintenance, it therefore matters whether the recipient has completely used up the sums for his current living expenses or has thereby provided himself with objects of value or advantages which are still present in his assets (references omitted). The latter is for example the case in respect of other savings or purchases. Even being released from obligations as a result of paying of one's own debts with the money acquired without legal grounds counts as a continuing financial advantage, which is in principle inconsistent with a disappearance of the enrichment (references omitted). The payment without legal grounds must however have been the cause of this financial advantage (reference omitted). That becomes especially clear if it is the payment itself which has led to release from the obligation, whether a debit account of the enrichment debtor has been replenished as a result of a mistaken remittance or whether the enrichment debtor himself has used the sum obtained for the purpose of paying off debts which he otherwise would not have paid. This is because the sum received without legal grounds then so to speak continues to exist in the surviving debt release. Conversely the enrichment debtor can rely on the disappearance of the enrichment if he pays the debts with some other sum than the sum received without legal grounds, perhaps with money given by a third party, and uses up the sum received without making any replacement. This is because an enrichment debtor who pays off liabilities from other means at his disposal cannot be in a worse position than an enrichment debtor who only has the enrichment at his disposal and uses this up.

b) The appeal in law obviously does not contest the requirement of a causal connection between the enrichment and a financial advantage for the enrichment debtor which has arisen from it and which remains. It considers however that it was only in respect of payments of maintenance in the realm of necessary subsistence that one could assume that they are used up completely for the recurring needs of life. On the other hand, the requirements for the proof of use by the maintenance creditor in cases in which the maintenance payment is above the necessary subsistence were to be set at a higher level. For a solution which does justice to the interests concerned, there had to be a presumption (which could only be refuted in concrete terms) in favour of the maintenance debtor that the maintenance creditor had paid for investments which were still available, or paid his own debts with sums, which came from the overpayment. Experience did not suggest that people given credit would default immediately their income reduced. Otherwise the enrichment debtor could always argue against the enrichment creditor that, independently of the level of maintenance paid, he would in any case have obtained for himself a certain asset or paid debts. In this connection the appeal in law was unsuccessful however.

The person enriched has to prove the disappearance of the enrichment, as it is a question of a defence destroying a right (reference omitted). The case law has alleviated the burden of proof for overpayment of salary or benefit for officials (which in their nature and purpose are equivalent to maintenance payments) if no special savings or other financial advantages have been created from the overpayment in the period in question. Even without special proof of expenditure, there is a presumption in favour of the recipient based on experience of life that he has spent the overpayment to improve his living standard - in particular with lower and middle incomes (references omitted).

But even if a continuing financial advantage has been created, disappearance of the enrichment is not excluded from the outset. The Federal Administrative Court (reference omitted) has accepted a disappearance of the enrichment in accordance with § 818 para 3 of the BGB even if the official has used the overpaid sum to pay debts which he would have paid in exactly the same way without the overpayment by him restricting his standard of life without the overpayment. This is because the excess payment merely meant that the official limited his lifestyle to suit the additional amount available to a lesser extent than he would have done if he had paid debts from the smaller salary to which he was entitled. According to these principles, which the senate endorses, the proof of the disappearance of the enrichment does not depend on whether the continuing financial advantage has been acquired from the additional amount paid without legal grounds or from the basic sum paid with legal justification. It cannot usually be established from which of the two sums a debt is paid, because the sum owed and the sum not owed are paid as a rule in a lump sum and the recipient does not distinguish from which part of the sum he finances his current lifestyle on the one hand and debt payment or purchase of assets on the other (reference omitted). What is decisive is the proof that the person enriched would have acquired the financial advantage in any case, even without the overpayment - if necessary by restricting his standard of living - so that the overpayment was not the cause of the financial advantage.

The appeal in law claims unsuccessfully that on overpayment of maintenance which is above the necessary subsistence stronger rules of proof would have had to apply for the protection of the maintenance debtor. The principles of proof developed for the officials cases are however transferable to private law wages and maintenance payments. This is because the situation is comparable with that in respect of officials' salaries (references omitted). That is also exactly what applies in the present case. The maintenance of the defendant at 1800 DM per month is in the realm of a lower or medium salary for an official. It is not evident that the spending behaviour of an official differs from that of a maintenance creditor. Nor is there any other ground which could justify a differentiation. The enrichment creditor's interest does not require any presumption to the effect that a financial advantage which the enrichment debtor possesses has been financed with the overpayment with the result that this presumption can only be refuted by concrete proof of some other use of the sum in dispute. On the contrary, it would stretch the requirements for proof too far and contradict the purpose of statute law which links the enrichment debtor's duty to compensate to the real increase in assets based on receipt of something without legal grounds (reference omitted). This is all the more so as in these income areas larger purchases like household goods or a car are financed as a rule by credit and the necessary interest and repayment instalments for this are paid by giving up other expenditure. Otherwise the defence based on disappearance of the enrichment would be excluded in almost all these cases. It will therefore be sufficient if there is proof that the defendant would have paid her debts even without the overpayment. The defendant has brought this proof. Indisputably she has continued to pay the instalment of 267 DM per month since 1980 until recently without any change, and, in fact, restricting her recurring living requirements even during the months in which she has only had maintenance of 1000 DM per month available because of the provisional suspension of the execution. The appeal court has, besides this, established without challenge that the defendant has not debited her account to any greater extent so as to lead to the conclusion that she made other savings, and further that she also has at her disposal no other means which she could have employed for her maintenance. The appeal court could draw from this the conclusion that paying off the loan was already included in her plans as a fixed item of her monthly expenditure to be paid for in advance and that resources going beyond this, like the overpayment, have served to improve her standard of living. The defendant can also refer to the disappearance of the enrichment in relation to the car, as she had already financed it beforehand from other resources, namely the loan.

2. The appeal court has, without any legal error, denied any stricter liability on the part of the defendant under §§ 818 para 4, 819 para 1, 820 para 1 of the BGB.

a) According to § 818 para 4 of the BGB the recipient of a performance without legal ground can, from the time the action is pending, no longer refer to the disappearance of the enrichment, but is liable in accordance with the general provisions. As the senate has already decided, this stricter liability is not linked to the fact that simply any proceedings are pending in which there is a dispute over the basis and level of the performance in question, but to a claim to handing over what has been obtained (§ 812 of the BGB) or to compensation for its value (§ 818 para 2 of the BGB). It has not seen room for a wider interpretation of the provision, either in the case of a claim for a declaration in respect of maintenance duties on the basis of an interim order (reference omitted) nor in the case of a claim for alteration of maintenance in accordance with § 323 of the Civil Procedure Code (reference omitted). This is because the regime of § 818 para 4 of the BGB is an exception, which must be seen as a narrow one, from the principle that the person enriched is liable for compensation only to the limit of an enrichment which is still available, and because the maintenance debtor is not without protection due to the possibility of suspension of the execution.

The appeal in law argues on the latter point that in practice a suspension of the execution only occurs in rare cases and the risk of disappearance of the enrichment is thereby shifted entirely on to the maintenance debtor.

This objection gives no cause to an alteration of the senate's case law. In the case of an application for suspension of the execution, the court must always examine whether the grounds put forward in the claim for an amendment justify a suspension. In this connection it must especially balance the interests of the maintenance creditor and the maintenance debtor against each other, with an eye to the difficulties which stand in the way of a demand for repayment of overpaid maintenance in the case of a retrospective amendment (reference omitted). If practice does not always do justice to this, it can change nothing in the legal situation itself. Besides this, it can be argued against the claimant that his applications for suspension made at first instance repeatedly failed due to the fact that he could not demonstrate the deterioration in his income which he asserted. He could have met the risk of the defence of disappearance of the enrichment in different ways. He remained free to raise the enrichment claim immediately after the maintenance payment without regard to the prior amendment of the maintenance title. By this means he could have triggered the effects of § 818 para 4 of the BGB in any case in relation to payments which had not yet been used up (reference omitted). It would also have been possible to connect the amendment claim by way of joinder with a claim to future repayment of the maintenance overpaid during the length of the amendment proceedings (§ 258 of the Civil Procedure Order) and in fact so as to avoid subsidiarily a risk of costs if he was successful in the demand for amendment. § 260 of the Civil Procedure Order is not inconsistent with this. Finally he would have been able to offer the overpayments to the defendant as an interest free and repayment free loan combined with the duty to renounce the right to repayment in the case of rejection of the demand for amendment. The senate has, in cases in which maintenance must be paid after the person entitled to maintenance has made an application for an annuity, seen a way, by granting maintenance by way of loan, to secure to the maintenance debtor a claim to repayment for the case of the annuity being awarded retrospectively. In accordance with good faith it is then incumbent on the person entitled to maintenance to accept a credit offered in such a way (references omitted). That appears possible in a case like this one also.

b) According to § 819 para 1 in combination with § 818 para 4 of the BGB, a stricter liability on the part of the recipient of the enrichment arises from the point in time at which he learns of the absence of the legal ground. For this, the recipient of the enrichment must have known of the absence of the legal ground itself and the legal consequences arising from this; the mere knowledge of facts on which the absence of the legal ground is based does not suffice (references omitted). The appeal court has admittedly left open whether the defendant had knowledge of the actual circumstances supporting the alteration of the maintenance settlement, so for the purposes of these appeal in law proceedings it is necessary in the claimant's favour to assume this knowledge. But the appeal court has denied bad faith in the absence of knowledge of the legal consequences, because in the light of the repeated rejection of the claimant's applications for suspension of the execution and the dismissal of the claim at first instance until the issue of the appeal judgment of the 19th December 1988, the defendant was permitted to trust in her continuing entitlement to 1800 DM per month. There is no objection to that. The uncertainty of the outcome of the proceedings argues in favour of the defendant. If the appeal in law considers in response to this that a maintenance creditor no longer deserves protection of trust from the making of the claim to amendment, so that he must be regarded as acting in bad faith, it fails to recognise that such a result would evade the protection of the recipient of the enrichment which is expressed in § 818 para 4 of the BGB (see above at a). This is because he would be compelled from this point in time onwards to keep the maintenance available for demands for repayment, although § 818 para 4 of the BGB only demands this from him from the point in time at which he is confronted with the maintenance debtor's enrichment claim.

c) Nor does stricter liability apply under the second alternative of § 820 para 1 sentence 2 of the BGB, which is the only one which comes into consideration. According to this, the performance must have occurred on a legal ground the disappearance of which was seen as possible according to the content of the legal transaction and which later does actually disappear. The purpose of the regime is that a recipient who from the outset takes into account his duty to give back must "make do" as if he had to give back the performance received. In this connection it must follow from the content of the legal transaction that both parties have imagined the possibility of disappearance of the legal ground, not merely incidentally but particularly (references omitted). The appeal in law regards these prerequisites as present because, according to the procedural settlement, the agreed maintenance had been calculated on the basis of the claimant's profit in the year 1984 and the defendant therefore had to take into account to a special degree that the claimant's business losses would lead to a reduction of her maintenance. But she thereby strays into the forbidden area of judicial assessment of the facts. From the regime further contained in the text of the settlement to the effect that there should possibly be a recalculation according to the Düsseldorf tables without the parties being bound by the principles of the settlement, the appeal court has concluded that the parties would not have wanted to commit themselves by the settlement in the case of a future amendment. But besides this, the settlement said nothing to the effect that they had already actually contemplated - similarily to the case of a terminating condition precedent - that the settlement could lose its effect. There is no objection in law to this interpretation. It is in harmony with the wording of the agreement which contains nothing other than the regime often used with maintenance settlements, that no fixed proportion with binding effect for future maintenance calculations should arise from the relationship between the income of the person obliged to provide maintenance which is taken as a basis and the level of the agreed maintenance.

Whether strict liability in accordance with § 820 of the BGB, according to its sense and purpose, is applicable anyway to maintenance agreements, which are always subject to the disappearance of the foundation of the transaction, can therefore be left undecided.

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