BGHZ 40, 272 VII. Civil Senate (VII ZR 285/61) Elektrogeräte -decision
31 October 1963
Professor B.S. Markesinis
Mr Raymond Youngs

I. Landgericht Hamburg

II. Oberlandesgericht Hamburg

In 1958 and 1959 the defendant had several houses erected on his land in H-S. He claimed that he commissioned the firm B with the provision of the entire electrical installations, inclusive of the delivery of electrical equipment.

The firm B ordered the necessary electric cookers and hot water tanks from the claimant.

On the 20th January 1959 the claimant sent to the defendant, for the attention of his architect, a "confirmation of order" for 22 electric cookers and 22 low pressure tanks. The architect sent this letter back to the claimant on the 22nd January 1959, and informed it that there must be a mistake in the confirmation. Neither he nor the client had given the claimant an order. If the claimant had received an order through the firm B, it should get in touch with this firm. The claimant gave no answer to this. It claims the failure to give an answer was inadvertent. On the 27th July 1959 it delivered 20 hot water tanks to the defendant's building site, with a "delivery note" which was addressed to the defendant for the attention of his architect, and which stated in the text part: "Recipient new building H-S". The electrician O of the firm B accepted the consignment at the building site and gave a receipt for it on the delivery note with his signature. On 29th July 1959 the claimant gave the defendant a bill for 20 tanks.

On the 27th August 1959 it sent him a further bill for 20 cookers which it was holding ready for him on request. On the 23rd September 1959 it delivered 19 cookers to the defendant's building site. The delivery note included agrees in its description of the recipient with that made out for the hot water tanks. The electrician O accepted this delivery also and signed the delivery note.

The tanks and cookers were installed in the defendant's new buildings immediately after the delivery by the electricians of firm B.

The claimant alleges that it had not intended to deliver the equipment to firm B on credit, and had agreed with it that it would only receive commission, and that it would deliver the equipment directly to the defendant and charge for it. It is of the opinion that a purchase contract had come into existence between it and the defendant. If that was not the case, the defendant would have to reimburse to it the value of the equipment, or hand it over, because the defendant had been unjustifiably enriched.

The claimant has applied for the defendant to be ordered to pay 10,906.22 DM or alternatively to hand over 20 hot water tanks and 19 electric cookers. The defendant refers to the fact that he had only commissioned the firm B and that he had paid its demand. He also considers that he had acquired the property in the equipment from the firm B in good faith, and would also not be liable on the basis of unjust enrichment

The Landgericht has rejected the claim. The Oberlandesgericht has allowed it in substance.

Following the defendant's appeal in law, the judgment of the Landgericht was restored.



1. The appeal court explains that a purchase contract had not come into existence between the parties. Its deliberations contain no legal error in this respect. The claimant also no longer claims in the appeal in law proceedings that it has contractual claims against the defendant.

2. The appeal court also reaches the conclusion that, by the installation of the equipment, the defendant had become the owner of it under § 946 of the BGB. It denies that the defendant had already acquired property from the firm B through agreement and handing over by virtue of good faith (§§ 929, 932 of the BGB). This is because the firm B had first obtained possession of the equipment when it was delivered to the construction site, and the firm B had not transferred possession to the defendant before the installation.

The appeal in law raises several objections to this. The senate considers them to be unfounded. They do not however need to be discussed. The claimant has no claim against the defendant, regardless of whether he has acquired ownership of the equipment by agreement and handing over, or only with the installation. In both cases the claimant could derive no claims from ownership because it is no longer the owner. It also has no enrichment claim. If the defendant had acquired property under §§ 929, 932 of the BGB, there could only be a claim against him on the basis of unjust enrichment if he had acquired the equipment from the firm B without payment (§ 816 para 1 sentence 2 of the BGB), which is not the case. Contrary to the view of the appeal court, the claimant is also not entitled to an enrichment claim under § 951 in combination with § 946 of the BGB, as is explained under II.


1. The appeal court's view that the claimant was owner until the installation of the equipment into the defendant's building, and under § 946 of the BGB has lost its property through this installation, must be followed. As it explains, the hot water tanks and electric cookers are things inserted for the manufacture of a building which under § 94 para 2 of the BGB have become essential components of the building and therefore, under § 94 para 1 of the BGB, of the defendant's land as well. The appeal court gives as its reasoning that modern dwelling houses are to be regarded as unfinished if they have no facilities for providing hot water. The same also applied for electric cookers as, according to prevailing opinions in northern Germany, houses were only completed if they had cooking facilities installed in their kitchens. The appeal court's statements on this subject are in harmony with the decision of the Bundesgerichtshof in NJW 1953, 1180 and are not assailed by either of the parties.

2. A person who loses his property in a moveable thing belonging to him by its combination with the land of another can, under § 951 para 1 sentence 1 of the BGB, demand reimbursement in money from the owner of the land, according to the provisions about handing over an unjustified enrichment. As is almost universally recognised today, the loss of property alone does not cause a claim under § 951 para 1 sentence 1 of the BGB to arise. The reference to the provisions about unjust enrichment means instead that an enrichment claim only arises under the prerequisites mentioned in § 812 para 1 of the BGB (references omitted). The appeal court also proceeds on this basis. Accordingly it depends on whether the defendant has obtained the increase in assets which has accrued to him through the installed equipment as a result of a performance by the claimant or at its cost in some other way without legal ground (§ 812 para 1 sentence 1 of the BGB).

3. The installation of the equipment cannot be regarded as a performance by the claimant. It has been undertaken by the firm B. This firm was obliged to provide the installation along with the equipment to the defendant on the basis of its contract concluded with the defendant, as the appeal court has established.

A person who as client commissions a building contractor or tradesman with the carrying out of a building project, or of facilities in a building, regards the performance carried out by the building contractor or tradesman in accordance with the contract concluded with him as one carried out by the person commissioned by him, and not as the performance of a subcontractor whom the building contractor may commission, or of an owner of material from whom the building contractor or tradesman has obtained the material. He must be able to rely on only having to make payment for this performance to the person commissioned by him, even if the performance was to be effected wholly or partially by a third party in accordance with the instructions of his contractual partner (reference omitted).

The senate has in its judgment of the 5th October 1961 (reference omitted) in a case which is comparable with the present one, denied an enrichment claim against the client. In that case, the owner of a piece of land had commissioned a company to build him a house at a certain price. The company had commissioned a building contractor to erect the building. The senate decided that the building contractor had no enrichment claim against the owner of the land, even if the contract between the building contractor and the company was void because of disagreement (Dissens) or had been concluded by the company in the name of the owner of the land but without his authority.

The senate has explained on this issue that the direct shifting of assets necessary for the enrichment claim between the building contractor and the landowner was lacking. For the latter, the increase in value of the piece of land was not a transfer by the building contractor but a transfer by the company of his contracting partner.

The decision of the 5th October 1961 has been attacked in the literature (references omitted). Berg accedes to it in the end result for the case of disagreement (Dissens) and likewise Esser [references omitted]. Fault is found particularily with the senate paying insufficient attention to the fact that it was a question of a performance condictio; the angle of the directness of the shifting of assets played no role here.

Nevertheless the decision of the 5th October 1961 is also justified if the case is considered under the more recent doctrine only from the viewpoint of the performance condictio.

The more recent literature considers a performance in the sense of § 812 para 1 of the BGB to mean a deliberate increase in the assets of another, directed towards a purpose (references omitted). Berg deduces from this that, in the case forming the basis of the judgment of the 5th October 1961, the building contractor had a peformance condictio against the client if the company had acted without his authority, provided that the building contractor wanted to effect performance for the client.

This view should not be followed. It cannot depend in a unilateral way on the person in whose favour the person effecting performance wants to render performance. Instead, if third parties are called in by the client's contracting partner for the erection of the building, account must be taken, for the protection of the client, of the person whose performance the transfer appears to be in the eyes of the client, when looking at the case objectively. It depends not on the internal intention of the person effecting performance, but on the recognisability of the identity of the person effecting performance "from the point of view of the person receiving the transfer" (references omitted). That was also expressed in the decision of the 5th October 1961 when it was said there that the increase in value was, for the owner of the land, a transfer by the company commissioned by him and not a transfer by the building contractor. But if it is necessary to assume that a transfer, seen from the determinative standpoint of the recipient, appears to be a performance by his contracting partner, the recipient can be sued by a performance condictio and, in fact, by an enrichment claim, at the most by his contracting partner, and then only if the performance is groundless according to the relationships existing between the two of them, perhaps because the contract concluded between them is void. The person who has been brought in by the contracting partner - possibly as subcontractor - in order to effect the performance has no enrichment claim against the recipient: neither a performance condictio nor a claim because of an enrichment "in some other manner" in the sense of § 812 para 1 sentence 1 of the BGB. A claim because of enrichment in some other manner, often described as an intervention condictio (Eingriffskondiktion) (reference omitted) can, according to more recent doctrine, only arise when the subject matter of the enrichment has not been performed for the recipient at all and thus has not been performed by anyone (reference omitted).

From the standpoint of this doctrine, a claim to enrichment by the building contractor against the land owner had accordingly to be refused in the case forming the basis of the judgment of the 5th October 1961, simply because what had been obtained had been performed for him by his contracting partner, and this performance did not lack a legal ground. No enrichment claim by the building contractor could then come into consideration because for instance his contract with the company was void nor because the company had held itself out to the building contractor as the landowner's agent falsely and without his knowledge.

4. It is then necessary, when a building contractor or tradesman uses and incorporates material which does not belong to him, to proceed according to the same principles under which enrichment claims are to be decided in the case where a subcontractor is brought in. If the client regards and is allowed to regard the incorporated material as the subject matter of the performance of the tradesman commissioned by him, the owner of the material can have no enrichment claim against the client: neither a performance condictio nor an intervention condictio (references omitted). In such a case, the client must be protected against enrichment claims by the owner of the material in the same way as against enrichment claims by the subcontractor. If the question of the identity of the person effecting performance is accordingly assessed from the standpoint of the client, it no longer depends on the question which was discussed (and answered in the negative) by the appeal court of whether the client can also be protected against enrichment claims by the owner of the material by corresponding application of the provisions about acquisition in good faith by a legal transaction (§§ 932 ff of the BGB, § 366 of the Commercial Code) (references omitted).

5. According to what has been said, it depends on whether the defendant was permitted to regard the delivery and the incorporation of the equipment as a performance by the firm B. That must be confirmed according to the facts as established by the appeal court.

The defendant had in January 1959 sent back to the claimant immediately the confirmation of the order which the claimant had sent him, with the comment that there must be a mistake.

He had thereby expressed his view that the claimant had concluded a contract with the firm B about delivery to the latter. As the claimant had not answered this letter by the defendant, he was permitted, when the claimant delivered the equipment several months later to the building site, to assume that this took place on the basis of a purchase contract concluded between the claimant and the firm B (details are given). Accordingly the claimant has no claim to reimbursement under §§ 951 para 1 sentence 1, 812 para 1 sentence 1 of the BGB).



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