Schweizerisches Bundesgericht, Urteil vom 16.10.2003, 5C.109/2003/rov ? Zum Anspruch des Scheinvaters auf Erstattung geleisteten Kindesunterhalts gegen den leiblichen Vater aus ungerechtfertigter Bereicherung

From mid 1980 to the spring of 1982 the Plaintiff and X lived in cohabitation. X gave birth to a child in July 1980, which was recognized by the Plaintiff as his child. Subsequently, the Plaintiff paid maintenance to the child and continued to do so after the cohabitees separated. Upon attaining the age of majority, the child commenced proceedings with the aim of establishing that the Plaintiff was no this father, but that the Defendant was. Following a DNA-test establishing that the Defendant was indeed the biological father, the Defendant assumed, with retrospective effect back to March 2000, the obligation to pay maintenance. In November 2000 the Plaintiff brought an action in unjust enrichment against the Defendant in respect of those maintenance payments as to which the claim was not extinguished by the absolute limitation period. The previous courts upheld the claim, as did the Bundesgericht (Central Appeal Court). According to the Bundesgericht, the rules of unjust enrichment are applicable to this case, since the Swiss Civil Code does not contain any special provisions on the repayment of child maintenance. Once the family law relationship between the Plaintiff and the child was terminated, Plaintiff?s obligation to pay maintenance consequently also extinguished retrospectively, and the Plaintiff was mistaken about the legal obligation to pay maintenance. In such a case, the man registered as legal father can sue the child, the mother and the begetter. It is irrelevant that, when suing the begetter, the claim is not brought against the recipient of the maintenance payments. In fact, the claim based on unjust enrichment does not require a direct movement of property between the claimant and the person alleged to have been unjustly enriched; what needs to be established is rather the enrichment which one person has gained at the cost of another person.