Restitution for Improvements Made on Another Person's Property

(r?) A Jungle of Distinctions: Roman Law and Corman Law

The German Civil Code contains a number of rules (§§ 994 ff. BGB) dealing with the restitution for improvements made on another person's property within what is called an 'ownerpossessor relationship' (Eigentiimer-Besitzer-Verhiilhiis).

This complex set of rules tends to baffle German law students as well as foreign lawyers. Nothing comparable can be found in either French or English law. In Germany, these Riles have become the subject of an extensive and elaborate scholarship devoted, partly, to ironing out conflicts of result and evaluation with the general restitution regime based on the law of unjustified enrichment (§§ 812 ff. BGB).³⁸ The German regulation contained in §§ 994 ff. BGB is squarely based on the Roman rules concerning restitution of impensae (expenses). These rules contain a 'jungle of distinctions'.³⁹ None the less, they used to fulfil a very necessary function, for if a person had made improvements on another's property he could not avail himself of the condictio as it was applied in classical Roman law.⁴⁰ Thus, the possessor was without protection at first. The rules concerning restitution for expenses, based on the exceptio doli (defence of fraud, or bad faith), served to provide such protection, if the owner demanded restoration of his property.⁴¹

With the generalization of liability for unjustified enrichment in the subsequent history of the ins commune, and from the point of view of Natural law,⁴² the rules concerning restitution for expenses were bound to lose their original significance: if a claim based on unjustified enrichment was available to a possessor who had made improvements on another person's property, he no longer required any special protection. Still, however, the draftsmen of the BGB decided to maintain the Roman Riles concerning restitution for expenses.

But they turned their rationale upside down: a special set of rules was necessary, not in order to enable a possessor to claim restitution for improvements, but in

¹⁸ See, for instance, the discussion and the literature quoted by Karl-Heinz Gursky, Stalldinger, Kommentar zum Biirgerlichen Gesetzbndf (13th edn., 1993), preliminary notes to §§ 994-1003; or Hans-Josef Wieling, Sachenrecht, vol. i (1990), 574 ff.

^w John P. Dawson, Unjust Enrichment: A Comparative Analysis (1951), 69.

⁴⁰ On the system of condictiones, see Reinhard Zimmermann, The Ijjw of Obligations: Roman Foundations of the Civilian Tradition (paperback edn. 1996), 834 ff.

⁴¹ For details see, most recently, Dirk A. Verse, Verwendnngen ini Eigentfimer- Besitzer-VerltOltnis (1999), 13 if.

⁴² See Zimmermann (n. 33) 282 f. order to define and specify the situations in which, exceptionally, no such claim was to be granted.⁴³ The policy focus, in other words, had shifted from the position of the possessor to that of the owner who was to be protected, wherever reasonable, from having to accept—and pay for— an imposed benefit. But the decision to retain the Roman rules within a changed doctrinal environment, and in terms of a reversed policy perspective, was a recipe for disaster. It has made the §§ 994 ff. BGB a minefield of legal problems.⁴⁴

(b) Liability for Unjustified Enrichment: French Law and English Law Other legal systems have jettisoned the Roman rules concerning restitution for improvements on another person's property, among them, most prominently, French law. 1 lore we find a much simpler and more straightforward legal regime devised under the auspices and within the framework of the generalized liability for unjustified enrichment.⁴⁵ English law too since Greenwood v. Bennett⁴⁶ approaches the problem of restitution for improvements from the point of view of the 'principle of unjust enrichment'.

Even German law reaches entirely satisfactory solutions in cases where §§ 994 ff. BGB are not applicable and where, therefore, resort must be had to the general enrichment regime. Thus, for instance, it is widely accepted that in cases of imposed benefits the enrichment has to be defined not just as a rise in market value but with regard to the particular recipient.⁴⁷ Once again, this is a solution with a long pedigree: it was applied in the German ins commune and has resurfaced in the interpretation of the Code even

⁴’ See Verse (n. 41) 36 ff. with full references.

⁴⁴ This is demonstrated, in detail, by Verse (n. 41) passim.

⁴⁵ Analysed by Verse (n. 41) 65 ff.

⁴⁶ |1973| 1 QB 195. The position in England is analysed by Verse (n. 41) 89 ff. For a comparative analysis, cf. also idem, 'Improvements and Enrichment: A Comparative Analysis’, (1998) 6 Restitution law Review 85 ff.; Werner Lorenz, 'Der Schutz vor aufgedrängter Bereicherung: Eine vergleichende Betrachtung des deutschen und englischen Rechts', in Festschrift für Dieter Medicus (1999), 367 ff.

⁴⁷ See, e.g. Dieter Medicus, Bürgerliches Recht (18th edn., 1999), n. 899; Werner Lorenz, in Staudinger. Kommentar zum Bürgerlichen Gesetzbuch, revised version of the 13th edn. (1999), preliminary remarks to 812 ff. n. 46. though it was not specifically adopted by it.^{^[324]} It has convincingly been demonstrated that §§ 812 ff. BGB would also provide more flexible and more appropriate solutions in cases where we have an 'owner-possessor relationship'.^{^[325]} By discarding §§ 994 ff. BGB, German legal doctrine could not only be considerably simplified; German law could, in this respect, also be brought in line, again, with mainstream European legal thinking.

<< | >>

↑

Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

Restitution for Improvements Made on Another Person's Property

More on the topic Restitution for Improvements Made on Another Person's Property: