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Sender:
Gerhard Dannemann
Date:
Wed, 28 Nov 2007 17:35:35 +0100
Re:
Birksian/sine causa approach to enrichment law

 

A short answer to Charles', rather than Jacques' question:

Some situations which in English law might call for restitution are instead covered by cessio legis in German law. This is an assignment which operates by virtue of the law and is not merely imputed. For example, if the guarantor pays instead of the principal debtor, § 774 BGB transfers the creditor's claim onto the guarantor who can use this claim to proceed against the debtor. Similar provisions apply e.g. for insurers who can recover from the tortfeasor for damage caused to the insured person. Cessio legis also occurs if an absconding parent fails to pay maintenance for his or her child and another relative steps in; the relative can recover from the parent by virtue of cessio legis under § 1607 subs. (2) or (3) BGB. Similarly, § 426 BGB allows joint and several debtors to recover from each other for what they have paid to the creditor in excess of their own share. And § 268 subs. (3) BGB allows a person to save his or her securities for a claim by paying another creditor who has a claim against the same debtor with privileged securities. The same person can then recover from the debtor, by cessio legis of the claim which the privileged creditor had against the debtor.

(This is an updated version of what I have written in Markesinis, Lorenz and Dannemann, The German Law of Obligations, Vol. I, p. 716-7.)

  

Gerhard Dannemann

  

Charles Mitchell wrote:

I'm afraid I can't answer Jacques' question, but I would like to an additional question of my own, by way of footnote to (distraction from?) his interesting comments on the difficulties experienced in civil law jurisdictions with cases where payments are made to discharge debts which turn out not to have been due. I believe that civil law / mixed jurisdictions have also had difficulties with payments of debts for the payment of which the claimant WAS liable, but which should more properly have been paid in part or in full by a defendant who was also liable for the same debt (i.e. cases which are treated in common law systems as claims for contribution or reimbursement). Since the debt owed by the claimant to the creditor in these cases was due, one could say that there was legal ground for the creditor's payment, suggesting that there is a legal justification for the transfer on which not only the creditor but also the defendant can rely, in the event that the claimant tries to get his money back - cf Pothier, Traité des Obligations 2.2.7.4. Hence I believe that civilian jurists have had to finesse this point in order to allow recovery - but I'd be interested to hear from people in civilian / mixed jurisdictions how this works out exactly.

  

--
Prof. Dr. Gerhard Dannemann
Centre for British Studies
Humboldt-Universität zu Berlin
Jägerstr. 10-11
10117 Berlin
Tel. +49 30 2093 5334
Fax +49 30 2093 5370
http://www2.hu-berlin.de/gbz


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