Restitution Law — Restitution

Date Citation Note
10.02.2004 BGH X ZR 117/02 X. Civil Senate If the donee of a thing is released from his restitutionary obligation as a result of donating it to a third party, the liability of the third party is not to restore the object itself but rather its value, a liability he can satisfy by returning the object.
§§528(1), 822 BGB
26.04.2001 BGH BauR 2001, 1412 The architects’ claim under §§ 684, 812 ff BGB is not excluded by the fact that an enrichment claim against the building owner has at the same time accrued to the former contractor after conclusion of its work
§§ 179, 684, 818 III BGB
24.04.2001 BGHZ 147, 269 In a case of performance by virtue of instructions the enrichment settlement takes place in principle within each performance relationship, and thus on the one hand between the person giving instructions and the person given instructions in the so-called cover (Deckungs-) relationship, and on the other hand between the person giving instructions and the recipient under the instructions in the so-called value (Valuta-) relationship
§§ 812, 826 BGB
20.03.2001 BGHZ 147, 145 A bank cashing a cheque in the absence of attributability of the ineffective declaration of instructions has no claim based on enrichment against the holder of the account if he actually owed the sum paid and the recipient of the payment did not know the lack of validity
The settlement in enrichment law must be exclusively carried out in the relationship between the bank and the recipient of the payment
§§ 140, 812 BGB; Art. 1 ScheckG
19.01.2001 BGHZ 146, 298 Even if the prerequisites of § 819 I BGB are not fulfilled for a favoured party, the ‘saldo theory’ cannot be applied to the party disadvantaged by a transaction which is akin to an extortionate action
§§ 138, 819 I BGB
29.09.2000 BGH WM 2000, 2190 The ‘saldo theory’ (balance theory) has no application to the dismantling in enrichment law of a contract which is void because of the legal incapacity of a contracting partner
§§ 812, 818 BGB
18.07.2000 EBE/BGH 2000, 322 Limitation of claims for compensation of value for the services of the illegal employees based on unjust enrichment is subject to the four year limitation period of the ineffective contract
The sub-contracted employee only has a claim to reimbursement against the hirer under § 10 (1) of the AÜG on the basis of the ineffective supply arrangement; the supplier and the hirer are not in a joint debtor relationship
§§ 812, 267, 421, 426 BGB, § 1 AÜG
14.07.2000 BGHZ 145, 52 If parties both take into account in enrichment settlement items in balance (Saldo) – rent obtained by purchaser, credit interest saved by seller – set off declared against another claim (compensation of purchaser for credit interest spent) with a balance item is only significant when balance is established
§§ 812, 818 I, III, 819 I BGB
29.02.2000 BGH NVersZ 2000, 299 If a liability insurer of a landlord paid an insurance advance, the claim for enrichment is not directed against the landlord but to his liability insurer who has made payment as a third party
§§ 812, 267 BGB
04.02.1999 BGH WM 1999, 484 Claimant whose father arranged, in agreement with the claimant’s sister, the transmission of shares from claimant’s deposit in the claimant’s name to a deposit in the sister’s name cannot demand the return of investment shares as unjustified enrichment
§ 812
08.01.1993 OLG Hamm NJW 1993, 2321 A life insurer is not obliged to pay a certain endowment sum if the declaration of will leading to conclusion of the contract has been effectively avoided, so that there is no contract
§§ 119, 144 BGB
17.06.1992 BGHZ 118, 383 XII. Civil Senate (XII ZR 119/91) §§ 812, 818 III, IV, 819 I, 820 I BGB
23.02.1990 BGH BB 1990, 735
V. Civil Senate
= NJW-RR 1990, 827
31.01.1990 BGHZ 111, 308 VII. Civil Senate (VII ZR 336/89) = NJW 1990, 2524 §§ 134, 812, 817, 818 II BGB
09.03.1989 BGHZ 107, 117 I. Civil Senate (I ZR 189/86) §§ 812 I BGB
15.05.1986 BGH NJW 1986, 2700
VII. Civil Senate
19.01.1984 BGHZ 89, 376 VII. Civil Senate (VII ZR 110/83) § 812 BGB
11.01.1971 BGHZ 55, 176 VIII. Civil Senate (VIII ZR 61/69) Jungbullen -decision §§ 818 III, 951, 993 BGB
07.01.1971 BGH NJW 1971, 609
VII. Civil Senate
(VII ZR 9/70)
31.10.1963 BGHZ 40, 272 VII. Civil Senate (VII ZR 285/61) Elektrogeräte -decision §§ 812, 951 BGB
20.06.1963 BGHZ 40, 28 VII. Civil Senate (VII ZR 263/61) Funkenflug -decision § 683 BGB
25.03.1963 BGHZ 39, 186
VII. Civil Senate
(VII ZR 270/61)
21.12.1956 BGHZ 23, 61 V. Civil Senate (V ZR 110/56) Bauwerk- decision § 951 BGB