BGHZ 40, 28 VII. Civil Senate (VII ZR 263/61) Funkenflug -decision
20 June 1963
Professor B.S. Markesinis
Mr Raymond Youngs

I. Landgericht Kassel

II. Oberlandesgericht Frankfurt, civil senate Kassel

In 1959 various forest fires broke out along the stretch of motorway from Sch to G as a result of flying sparks from passing locomotives. The voluntary fire service of the claimant commune (Gemeinde), amongst others, was used to fight these fires. The commune has demanded compensation from the defendant Federal Railways (Bundesbahn) for the expenses which it has incurred as a result. The Landgericht has rejected the claim. The Oberlandesgericht has declared the claim to be justified in principle. The defendant's appeal in law was rejected.


1. ...

2. On the other hand the Oberlandesgericht considers the claim from the point of view of unjustified enrichment to be well founded...

But it is not necessary to go into this in more detail. This is because the claim is justified in principle by the provisions about negotiorum gestio (conduct of business without mandate) (§§ 683, 670 of the BGB) as will now be explained.

The appeal court admittedly denies such a demand. It explains:

The activity of the fire services had related to the area of the defendant's concerns and had promoted its interests; the claimant had thus conducted business for the defendant. But the claimant had not shown that it also had had an intention to this effect. In fighting the fire it had carried out its own business, in accordance with the public law duty which it owed. Under these circumstances it would have had to demonstrate that it had also intended to act in favour of the "fireraiser". Such an assumption was unthinkable. Besides, no facts of any kind had been supplied which permitted the conclusion that there was such an intention. That view cannot be followed.

a) The appeal court's starting point is correct. In fact it depends decisively on whether the claimant had had the intention of looking after the business of another as well (reference omitted). The considerations by which the Oberlandesgericht denied such an intention are not however free from legal error. It is recognised in the case law that the conduct of a business in the sense of § 677 of the BGB is also possible when the person concerned is acting primarily to protect his own interests and only incidentally in the interest of another. In particular, the fact that the person conducting the business is fulfilling a public law duty of his own does not prevent the assumption that he is at the same time looking after the private law business of a third party (references omitted).

Difficulties can be encountered establishing whether, in cases of this kind, the intention is present of also carrying out the business of another. If it has not become evident in some kind of outward form, then, as is the rule in the legal world, no notice can be taken of it. There must therefore always be grounds present which make the intention to carry on the business (of another) externally recognisable.

These grounds can arise from the nature of the business. If it is objectively the business of another wholly or at least additionally simply because of its character, then that intention to conduct the business (of another) is to be presumed, and it will be for the person who denies it to bring evidence to the contrary. It is otherwise with outwardly neutral activities which on their own permit no conclusion as to whether the person undertaking them intends to do so only for himself, or for another. In the case of these activities, the intention to carry on the business, and the recognisability of the intention, must be demonstrated by the person who asserts them (references omitted).

The appeal court has in general correctly reproduced these principles. But it has not paid attention to the fact that they are likewise applicable if the business, according to its external appearances, benefits not only the person concerned with it but also a third party. That is the case here. Certainly the fire service was acting in fulfilment of the duties imposed upon it in public law. But the aim and purpose of its actions were and are, as always, assistance for third parties. Everyone who could suffer harm through the unimpeded continuance and spread of the fire came into consideration in this category. The intervention of the fire service was thus in their interest, and accordingly their business was also being looked after.

The Federal Railways belonged to this circle of interest here, in addition to the owners. It was liable to the owners in accordance with § 1 of the SachschHG, even if it was not at fault in respect of the harm. On that account, and on an objective view of the matter this cannot be doubted, it must have been of compelling importance to the Federal Railways to limit the harm (reference omitted). According to what is said above, it must thus be presumed that the claimant intended to help the defendant as well by deploying the fire service, and accordingly had the necessary intention to conduct a business under § 677 of the BGB. It would have been for the defendant to prove the contrary. It has not brought such proof; and such proof could also scarcely have been brought in the circumstances of the case.

b) Admittedly these deliberations need limitation.

There are cases of looking after a business in which statute law obliges the person concerned to act without payment. If these conditions are present, a claim to reimbursement of expenses under §§ 683, 670 of the BGB does not apply, because the person conducting the business should bear them himself by virtue of his special duty (reference omitted).

In the present case the Hessian Fire Protection Act contains in § 14 a provision which is concerned with the question of how far the fire service can demand compensation from third parties. It states:

" If the owner or the person in possession of the building set on fire has caused the fire intentionally or with gross negligence, the commune can demand compensation from him for the costs which it has incurred as a result of fighting the fire. Otherwise fire fighting is to be without payment."

The Oberlandesgericht interprets this provision to the effect that its last sentence about deployment without payment should only benefit the owner or person in possession who has neither caused the fire intentionally nor with gross negligence, but not a third party. This interpretation binds the court hearing the appeal in law according to §§ 549, 562 of the Civil Proceedings Order. There is no ground from the remainder of the legal order for saying that the fire service has to perform its activities for the benefit of such a third party without payment. Accordingly, the defendant cannot argue that the claimant commune, in its relationship to it, the defendant, must solely bear the expenses of putting out the fire.

Back to top

This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.