Bundesgerichtshof (Seventh Civil Senate) 7 January 1971, NJW 1971, 609
On 27 August 1968, the defendant, who was born on 5 September 1950, took a scheduled flight operated by the plaintiff from Munich to Hamburg, after having purchased a ticket for this flight. At Hamburg, he managed to join the transit passengers and to re-enter the plane for a flight to New York, without being in possession of a valid ticket for this part of the journey. He was refused entry to the United States, because he did not have a visa. The plaintiff thereupon made the defendant sign a document according to which the defendant owed the plaintiff the sum of US$ 256, issued the defendant with a ticket for the return journey and, on the same day, took the defendant back to Munich on a scheduled flight operated by the plaintiff. The defendant’s mother as his statutory agent refused to grant consent to legal transactions concluded between the defendant and the plaintiff.
By the present proceedings, the plaintiff requires the defendant to pay the fixed flight rates for the journeys from Hamburg to New York = DM 1,188, and from New York to Munich = DM 1,024, basing these claims alternatively on contract, tort, unjustified enrichment and negotiorum gestio.
The Landgericht disallowed the action, while the Oberlandesgericht ruled in favour of the plaintiff. The appeal by the defendant – leave to which having been granted by the Oberlandesgericht – was without success.
I. … (No claim in contract.)
II. 1. … (No claim in tort.)
2. On the other hand, the Appeal Court believes that the plaintiff has a claim in unjustified enrichment against the defendant as regards the price for the journey from Hamburg to New York.
The Appeal Court argues that the defendant was enriched by the plaintiff’s performance, which was effectuated without a legal cause, and that the defendant is to pay to the planitiff the value of this performance in accordance with §§ 812, 818 II BGB. The defendant is enriched by the fact that he actually took advantage of a performance of monetary value, and thereby acquired an economic value, even if this value has not materialized in his overall assets. Since it is impossible to undo the actual use, any subsequent change of position under § 818 III BGB is excluded by definition. The value of the enrichment is to be measured according to the usual remuneration paid for the performance received. It is without consequence that the defendant was a minor; in the Appeal Court’s view, the provisions on unjustified enrichment apply to minors without any limitations.
3. The appeal attacks these considerations, but ultilmately without success.
The appeal, however, is right in stating that the Appeal Court cannot rely on the jurisprudence of this present Senate for its view that the defendant is liable as the recipient of a performance which by its nature cannot be returned in kind, regardless of whether or not this performance has increased the defendant’s assets or has saved him expenses. It is true that in the decisions mentioned by the Appeal Court (BGH, JZ 60, 603; BGHZ 36, 321, 323; BGHZ 37, 258, 264) the present Court did refer to the value of the services which had been conferred in each of those cases when determining the amount of the enrichment in question. Such value is to be measured according to the usual or reasonable remuneration for the service in question. However, by stating this, the present Senate did not express the view that it was without any importance in these cases whether or not the debtor of the restitution claim had saved any corresponding expenses. On the contrary, those cases concerned the provision of legal services and the rationalization of works, and thereby services which the debtor of the restitution claim was in need of. It could therefore be assumed that the debtor would have obtained these services at any event from elsewhere and at the usual or at a reasonable rate, in particular since remunerated contracts for the provision of such services had already been entered into. It appears that these decisions by this Senate have generally not been interpreted in the way in which the Appeal Court understands them.
On the contrary, the courts have always taken the view that there is an enrichment within the meaning of §§ 812 et seq. BGB only if, and to the extent that, the enriched party has experienced a true increase of assets, be it only by having saved expenses. …
One must adhere to this established court practice. It would otherwise become doubtful whether the generally recognized and supreme principle of the law of unjustified enrichment could remain recognized for all situations, namely that the enriched party’s obligation to give up the enrichment must never lead to a diminuition of this party’s assets in excess of the amount by which this party is truly enriched (BGHZ 1, 75, 81; other references omitted).
4. However, cases such as the present demonstrate that there can be a need for a modified and more differentiated view. For the peculiarities of this dispute consist in the circumstance that, on the one hand, the defendant argues that his assets were not at all increased by flying on the plaintiff’s aircraft. The defendant argues that this journey was for him a luxury which he would never have obtained if he had had to pay for it. Besides, he would at any event have been unable to do so because he lacked the necessary financial means. Therefore, he had not saved anything, and the plaintiff’s performance was used up at the moment when he received it. On the other hand, the defendant was aware from the beginning that he received the plaintiff’s performance without a legal ground. (The fact that the plaintiff was a minor will be disregarded at this stage).
(a) Thus, several principal questions of the law of unjustified enrichment are entangled with each other. In the first instance, under § 818 III BGB, extraordinary expenditure which otherwise would not have been incurred can make an enrichment disappear which initially has accrued (reference omitted). Therefore, if such expenditure immediately coincides with the receipt of the performance, this expenditure should be apt to prevent that there is even an initial enrichment. On the other hand, the recipient can generally not rely on change of position as a bar to, or as a measure of, enrichment if he knows on receipt or learns later that there is no legal cause for the performance (references omitted). However, a party which from the outset is not enriched by receiving performance is, in principle, not liable at all under §§ 812 et seq. BGB, even if this party, on receipt of performance, is aware of the lack of a legal cause (reference omitted).
In the present case, this would lead to the following consequences. If the defendant had received a ticket, or the money for the flight, from a third party without legal cause, he would be liable to this party to compensate for that value under § 818 II BGB. Under the same subjective circumstances, the mere fact that he obtained the performances which he desired directly from the plaintiff seems to imply that the defendant is not liable at all. These two results cannot be reconciled with each other. Therefore, the question as to what the defendant “received” must rather be answered in the same way for both of these situations.
(b) The same inconsistency cannot be avoided – as the Appeal Court seems to have in mind – by applying separate and fundamentally different standards to the receipt of services which by their nature cannot be returned in kind, i.e. by considering the mere use of such services as an enrichment and entirely ignoring whether or not expenses have been saved which otherwise would have become necessary. Neither can it be considered an adequate solution if one continues to calculate the enrichment according to the expenses saved, but desists from measuring these savings according to the particular circumstances associated with the enriched party, and rather measures these according to what one generally would have paid for the performance received if matters had taken their proper course (cf. BGHZ 20, 345, 355; other references omitted). For both options would disadvantage a person who bona fide receives a performance and has every reason to trust that he may keep it, thereby receiving something which he would not otherwise have obtained, and without acquiring any other lasting financial advantages from the same act.
(c) What is instead required, in order to remove the inconsistency which has thus occured, is to co-ordinate, in a sensible fashion, the separate provisions which are contained in §§ 818 et seq. BGB. It is with justification that some of the academic writing (von Caemmerer, Festschrift für Rabel, Vol. I, p. 368; other references omitted) pay special attention to the circumstance that claims for unjustified enrichment in civil law are primarly geared towards “what has been obtained” or its corresponding value. And indeed, apart from the heading, §§ 812 et seq. BGB from the outset and up to § 818 I and II, invariably speak of “what has been performed” or “what has been obtained”. It is for the first time in § 818 III (and then again in §§ 820 II, 822) BGB that the concept of “enrichment” is used as a measure for limiting liability in accordance to the preceding provisions, to which this limitation is therefore quintessential. It is ultimately this concept on which the normal application of the so-called Saldotheorie (doctrine of the balance) is based.
The basic idea of the law of unjustified enrichment, i.e. that the duty of a bona fide enriched party to give up [an enrichment] must under no circumstances result in a reduction of the assets of this party in excess of the amount of the true enrichment, therefore finds its manifestation precisely in the provision of § 818 III BGB from which it has expressly been deduced by the jurisprudence (BGHZ 1, 75, 81; RGZ 118, 185, 187).
On this basis, however, it seems entirely appropriate, and even necessary, to transfer those principles which decide whether or not the enrichment has survived, and apply them to the question whether or not there has been an initial enrichment, provided the interests involved are the same. This is at least necessary if such a transfer can solve inconsistencies within the law of unjustified enrichment, which would arise if one were to apply different requirements to the survival of an enrichment on the one hand, and to the existence of an initial enrichment on the other, even if no convincing reasons can be found for such different treatment. In these situations, considerations of equity alone – which have a particularly strong influence on the law of unjustified enrichment (cf. BGHZ 36, 232, 235) – require that the necessary adjustments be made.
It has been set out above that an enriched party who is aware of the lack of a legal cause when receiving the enrichment, is generally not allowed to rely on a subsequent disappearance of this initial enrichment. In this situation, there seems to be no reason why the same person, under the same conditions, should be allowed to deny the very accrual of an enrichment. This should at least not be permitted if the enrichment in question – as in this case – consists in the saving of expenses for extraordinary matters, which the enriched party would or even could not otherwise have afforded. If the enriched person is aware of the lack of a legal cause, it cannot make any difference whether he first incorporates into his assets what he initially has received and spends it later, or whether it is the received performance which itself satisfies the extravagance. What is decisive is that the party in question, while knowing the legal cause is lacking, has actually received something for which this party, if this something is no longer present, must principally compensate in value according to § 818 II BGB.
It is with justification that von Caemmerer (ibid, further reference omitted) underlines that the regular measure of an unjustified enrichment claim is governed by §§ 818 I, II and IV, 891, 820 BGB, whereas the exceptional limitation to the changing amount of surviving enrichment under § 818 III BGB is intended to protect only a bona fide recipient. The same must already apply to the accrual of an enrichment if, as has been stated, there is no reason to treat the disappearance and the accrual of an enrichment in a different way. In such a case a mala fide recipient must accept being treated as if he had saved something and had in this way increased his assets (reference omitted). The compensation for the value of the received performance, which he owes under §§ 818 II, 819 BGB is – as in other cases (cf. BGHZ 37, 258, 264; BGHZ 36, 321, 323) – to be measured by the amount of the usual or reasonable remuneration.
5. (Defendant is to be considered mala fide.)
III. 1 The claim for payment of the fixed flight price for the defendant’s return journey from New York to Munich is allowed by the Appeal Court under the provisions on negotiorum gestio. The Appeal Court argues that, by transporting the defendant to Germany, the plaintiff conducted a business which was objectively in his interest. The application of §§ 677 et seq. BGB would not be precluded if the plaintiff believed it was acting under a valid transport contract concluded with the defendant. Nor would this application be prevented if the plaintiff, according to the legislation of the country of entry, was under a legal obligation to carry back the defendant. It was equally within the presumed will of his mother – her intention being decisive because she was the defendant’s statutory agent – that the defendant be transported back. Again, the plaintiff could require as compensation for expenditure the usual remuneration for its business performance.
2. The appeal fails again to succeed in its attacks against these considerations.
(a) In principle, it was up to the defendant to make arrangements for his return to Germany after his unsuccessful attempt to enter the USA, so that in transporting the defendant back to Germany, the plaintiff conducted a business which objectively was not its own. By this, it is presumed that it was at least also for the defendant that the plaintiff intended to carry out this business (BGHZ 40, 28, 31 [supra in translation]). The defendant has not been able to rebut this presumption. If the plaintiff mistakenly believed it was obliged to the defendant to carry him back, this does not stand in the way of negotiorum gestio (BGHZ 39, 87, 90; BGHZ 37, 258, 263). Equally, the circumstance that the plaintiff acted in its own interests, or in fulfilment of its own duties under public law, or of other duties under private law, does not prevent the conclusion that the plaintiff also carried out the defendant’s business (BGHZ 54, 157, 160; BGHZ 40, 28, 30 [supra in translation] with further references). The appeal has not argued against this.
(b) But the appeal argues, although without justification, that it was objectively not in the defendant’s interest that the plaintiff took care of his immediate return to Germany in one of the plaintiff’s planes. The Appeal Court has rightly stated that this saved the defendant from trouble which would otherwise have been unavoidable because of his attempted illegal entry into the USA, and from a possible enforced expulsion by the American immigration authorities. This shows sufficiently the objective interest which the defendant had in returning on a plane operated by the plaintiff.
(c) The Appeal Court was also right in ruling that it could be presumed that the defendant’s mother would consent to the plaintiff providing his return. This is in accordance with the jurisdiction of the present Senate, which, short of any evidence to the contrary, considers that the intention one must presume is the one which serves best the well-understood interests of the defendant (BGHZ 47, 370, 374).
On this point, the appeal argues that the plaintiff could not have presumed that the defendant’s mother had a particular interest in having her son return on a scheduled flight. He could equally have returned by boat, which would have been cheaper.
This argument cannot be followed. The plaintiff was allowed to presume that the defendant’s mother would intend to do what would be the best for her son in any given circumstances. The defendant was by no means in a position to embark at his pleasure on a return voyage to Germany by boat, but would have been exposed to all the dangers connected with him first being interned, if the plaintiff had not taken him instantly back to Germany. The latter was the solution which, under the given circumstances, served best his rightly understood well-being, even if the costs for the flight were relatively high, albeit not intolerable.
(d) It does therefore not matter whether the immediate return of the defendant was also within the public interest (§ 679 BGB).
(e) Rather, the defendant must compensate the plaintiff for its expenditure on his return flight under § 683 I BGB. Because the carrying out of this business constitutes an activity which the plaintiff undertakes within the framework of its business, the plaintiff is entitled to require that the usual remuneration be paid for the performance which it has made. This is the overwhelming majority opinion in jurisdiction and academic writing, to which this Senate acceeds (references omitted).