BGHZ 55, 176 VIII. Civil Senate (VIII ZR 61/69) Jungbullen-decision
11 January 1971
Translated by:
Mr Raymond Youngs
Professor B.S. Markesinis

I. Landgericht Bielefeld

II. Oberlandesgericht Hamm

A thief stole two young bulls from the claimant farmer and sold them for 1701 DM to the defendant who was acting in good faith. He used the animals in his meat products factory. At the previous instances the defendant was ordered to pay the claimant 1701 DM compensation for value in accordance with the application. By the appeal in law, which has been admitted, the defendant seeks the rejection of the claim. The claimant applies for the rejection of the appeal in law.


1. The defendant could not according to § 935 para 1 of the BGB acquire any property from the thief. The claimant therefore remained the owner of the animals when they moved into the defendant's possession. He only became owner in accordance with § 950 of the BGB when he had the meat processed in his business after the slaughter of the animals. There is no dispute between the parties about this.

The claimant has therefore lost the ownership in the animals "as a result of the provision" of § 950 of the BGB. According to § 951 para 1 sentence 1 of the BGB he can therefore "demand reimbursement in money according to the provisions about the handing over of an unjustified enrichment". The reference to the enrichment provisions in this provision does not only, according to established case law (references omitted), apply to the extent but also the ground of the claim ("legal ground reference"). The claimant therefore has a claim under this provision against the defendant only if the general prerequisites for an enrichment claim are also present and thus, in particular, if the defendant has obtained property in the meat in the relationship with the claimant without justification. This must be affirmed.

2. A ground which could justify the defendant being allowed to keep the property acquired on the basis of § 950 of the BGB without having to make a settlement in favour of the claimant (justifying reason) can, in particular, not be found in the contract with the thief. §§ 932 ff of the BGB regulate conclusively the conflict of interests which arises when a person who is not entitled to it disposes of a thing belonging to another in his own name to a third party. They do so in favour of the third party for cases in which the owner has not unintentionally lost the thing and the third party does not act in bad faith. In this case, the third party becomes owner in accordance with §§ 932 ff of the BGB and he is allowed to retain ownership without being obliged to make a settlement to the former owner. The contract by the unauthorised person with the third party is in this case the ground which justifies the shifting of assets. But in all other cases, and thus also in the one present here, in which the owner has unintentionally lost the thing, statute resolves the conflict of interests in favour of the owner. He retains the property and therefore the claim against the third party as possessor to handing it over under § 985 of the BGB. If the latter as a result of the provisions of §§ 946 to 948, 950 of the BGB later becomes owner, this acquisition of property is not justified by the disposal transaction which the unauthorised person has concluded with the third party. The acquisition of property by the third party is not based on this disposal transaction (to which, on the contrary, § 935 of the BGB denies all legal effect), but only on §§ 946 ff of the BGB. But these provisions do not on their own give a justifying reason for the shifting of assets, as must be deduced from § 951 para 1 sentence 1 of the BGB.

3. A claim under § 951 para 1 sentence 1 of the BGB is not excluded by the special regime of §§ 987-993 of the BGB (see § 993 para 1 half sentence 2 of the BGB). It is true that until they were processed by the defendant, the claimant was the owner and the defendant the (non-entitled) possessor of the animals. The processing by the defendant resulted in him no longer being able to hand over the animals. The defendant would only be liable to pay compensation to the claimant for this under the prerequisites of §§ 989, 990 of the BGB (pending action, bad faith) (§ 993 para 1 half sentence 2 of the BGB), which are indisputably not present here. That is however not inconsistent with a claim under § 951 para 1 sentence 1 of the BGB which is not a claim for compensation but a claim for enrichment.

The Bundesgerichtshof has repeatedly stated for other enrichment claims that they are not excluded by the special regime of §§ 987-993 of the BGB. In BGHZ 14, 7 ff an enrichment claim has been granted to the former owner in a case in which the possessor in good faith had used up the thing (fuel) which belonged to another for his own purposes and had thereby saved expenditure. According to constant case law, an enrichment claim is also allowed to the former owner in cases in which the possessor disposes of a thing belonging to another and in this way provides himself with its value. According to § 816 para 1 sentence 1 of the BGB he must then hand over what has been obtained by the disposal (reference omitted). That also applies in respect of the disposal of a thing which the owner has unintentionally lost if he permits the disposal as against the person making it, in particular by raising a claim under § 816 para 1 sentence 1 of the BGB. In all these cases, the enrichment claim of the former owner is not excluded as against the former possessor by §§ 987-993 of the BGB. The common ground for this is that the possessor in good faith is to be admittedly released by the regime of §§ 987-993 of the BGB - within certain limits - from claims to compensation by the owner which are regarded as unfair; but he is not to be allowed to keep the value of the thing in so far as he has procured it by an objectively unjustified invasion of property. But in this respect all cases of the Eingriffskondiktion are to be handled in the same way. That applies especially for the case to be decided here in which the possessor processes, in accordance with § 950 of the BGB, a thing which the owner has unintentionally lost and in this way has deprived the owner of the property. The enrichment claim which is then present under § 951 para 1 sentence 1 of the BGB is not affected by the special regime of §§ 987-993 of the BGB (references omitted).

4. As to the extent of this enrichment claim, the same applies as for enrichment claims in the case of unjustified consumption or unjustified disposal by the possessor. In these cases, according to the established case law (references omitted), the former possessor against whom a claim has been made under § 812 or § 816 of the BGB cannot according to § 818 of the BGB bring into account the performance effected to a third party for the acquisition of the thing. This is because the enrichment claim has taken the place of the claim to handing over under § 985 of the BGB. The possessor could not refer to the performance effected to a third party as a defence to the latter claim. Therefore he can also not do it as against the enrichment claim (reference omitted). Instead he is directed to demanding back his performance from the person to whom he effected it. The same applies for the case of § 951 para 1 sentence 1 of the BGB (reference omitted). The defendant can therefore demand back the 1701 DM paid by him to the thief only from the latter. As against the claimant's enrichment claim, this payment does not form the basis of any defence under § 818 of the BGB.

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