BGH, Urteil vom 12.12.1997, BGH JZ 1998, 685 m. Anm. Gursky - Zur Berücksichtigung von Aufwendungen des unrechtmäßigen Besitzers beim Nutzungsherausgabeanspruch nach §§ 988, 8

The decision of the German Federal Supreme Court was based on the following set of facts: The defendant, inter alia in 1991, made use of the plaintiff's land, without having any rights of occupation. A villa and stables had been built on the land. During the time of use, the defendant expended various sums of money on the property, of which no further details are given. In her claim, the plaintiff sought payment for the benefits the defendant had obtained from the use of the villa and stables in 1991. In his defence, the defendant claimed a set off, supplemented by a counterclaim, based on the expenditures he had made. The Landgericht dismissed the claim, but the Oberlandesgericht allowed an appeal. The further appeal in cassation led to the case being referred back to the appeal court. In giving its reasons, the Supreme Court stated that the defendant had no rights of occupation and therefore owed the plaintiff for the benefits of use asserted, in accordance with §§ 988, 818 of the German Civil Code. The duty to compensate was, however, limited in principle under § 818(3) of the Code to the benefits that overall still remained within his patrimony. In contrast to an opinion commonly expressed in academic writings - to the effect that the expenditure made by an occupier can only be be used as a defence to a claim based on § 988 of the Code if it concerns harvesting costs or expenditures within the meaning of §§ 994 ff of the Code - the Supreme Court took the view that expenditures made by the occupier in relation to the property in question could be taken into account to reduce the claim to compensation for use based on §988 of the Code independently of the question whether they were expenditures within the meaning of § 994 ff of the Code. If the occupier asserted that his enrichment had been cancelled out by expenditures, the decisive issue was whether those expenditures had a close connection with the benefits obtained from use of the property. This was in principle the case when the occupier had made expenditures on the property. In the following comments, the authors examine the problem from the point of view of Greek and Spanish law.