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Jason Neyers
Wed, 28 Nov 2007 12:41:02 -0500
Birksian/sine causa approach to enrichment law


In response to Charles' question, there are similar provisions to be found in the CCQ. I can't recall whether they were treated as arising by operation of law or were imputed. In any event, I recall being taught that these provisions were consistent with the secondary nature of the indemnity promise made -- i.e. the person would be over-indemnified if they were both compensated and kept the debt and thus had to transfer the debt to the indemnifier. The secondary nature of the indemnity explained why the debt was transferred rather than extinguished.


----- Original Message -----
From: Gerhard Dannemann
Date: Wednesday, November 28, 2007 11:40 am
Subject: Re: [RDG] RDG: 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.)


Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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