The bank will post a subsequent check
Bank Liability - Obligations of the bank prior to cashing a submitted cashier's check
LG Stuttgart - Az.:12 O 593/13 - judgment of June 27, 2014
1. The lawsuit is dismissed
2. The plaintiff bears the costs of the legal dispute.
3. The judgment is provisionally enforceable against security of 110% of the amount to be enforced.
The plaintiff demands from the defendant damages and re-crediting of amounts paid out in connection with the disbursement of cash checks to a former employee of the plaintiff who is accused of multiple breaches of trust in a particularly serious case to the detriment of the plaintiff.
The plaintiff is the German subsidiary and sales company of the Italian company ... sold chemical products that it obtained from other companies in the group. According to the extract from the commercial register of the Stuttgart District Court of November 20, 2012 (Annex K 7; Bl. 116 of the GA), the plaintiff has been in liquidation since November 8, 2012. As a liquidator ... was appointed.
The defendant is a Volksbank from the Sindelfingen region, with which the plaintiff had a current account. The plaintiff used this account to process its payment transactions using regular cashier's checks. With regard to the mutual obligations resulting from this, reference is made to the applicant's application for opening an account of June 26, 1995 (Appendix B1; Bl. 163 of the GA) and the special conditions for check transactions, as of June 2001 (Appendix B2; Bl. 164 of the GA ) referenced.
From April 1981 to March 2010, Ms. ... was employed by the plaintiff as an accountant. After the end of her employment relationship, Ms.… supported the plaintiff until March 31, 2011 in the area of accounting as a freelance consultant. On February 6, 1995, she was granted power of attorney, which entitles her to individual representation. The power of attorney was withdrawn from Ms.… on June 2, 2010. For the plaintiff's account with the defendant, Ms. ... was authorized to represent at least one person from 7/5/2005 to 04/28/2011.
For many years, Ms.… regularly cashed cashier's checks made out by the plaintiff in the defendant's branch in Weil der Stadt. The individual amounts of the checks amounted to a maximum of EUR 8,900.00.
In the period from 5.01. Until May 20, 2010, Ms. ... had ten cash checks drawn from the defendant's account, which she previously had with “ppa. ... ”had to pay out personally at the defendant's branch in Weil der Stadt. The corresponding cashier's checks with the check number 0000000362853; 0000000375319; 0000000375321; 0000000375291; 0000000375292; 0000000375296; 0000000375297; 0000000375299; 0000000375299; 0000000375305 for a total of EUR 44,146.50 each had to be paid out to the deliverer. The defendant paid Ms.… the total amount of EUR 44,146.50 due to the cashing of the check. With regard to the external appearance of these ten checks, reference is made to Annex K9 (Bl. 119 ff. D.GA), which contains a copy of each of the cashed checks.
In the period from May 31. up to October 5, 2010, Ms ... had paid seven more personal checks with the check number 0000000375307; 0000000375308; 0000000375310; 0000000375311; 0000000375312; 0000000375314; 0000000375315 at the defendant's branch in Weil der Stadt and had the equivalent of a total of EUR 50,000.00 paid out in cash. The checks have a uniform typeface and were signed by the then manager of the plaintiff, Mr. ... The signature on the checks corresponded to the signature sample that is deposited in the defendant's optical archive. For the details of these seven checks, please refer to Appendix K4 (page 56 ff. Of the GA), which contains a copy of the seven cashed checks.
None of the 17 cash checks at issue shows an amount greater than EUR 6,462.80.
In connection with a tax audit at the plaintiff in September 2011, the suspicion arose that Ms. ... had deliberately stated the input tax and import sales tax too high for years in the monthly advance VAT returns in order to give the plaintiff the impression of a higher cost of goods. This resulted in alleged reimbursement amounts for sales and import sales tax paid. Through the lawyers Dr. ... and Dr. ... thereupon the plaintiff filed a complaint against Ms. ..., whereupon the public prosecutor's office initiated an investigation against Ms. ... under the file number Js 82607/11.
Ms.… wrote a letter to the then managing director of the plaintiff on September 8, 2011… in which she apologized for the “cause sorrow” and said that she had played in 2005 and therefore “took the money”. For the further content of the letter, reference is made to Annex K6 (Bl. 115 of the GA).
Shortly afterwards, on September 12, 2011, Mr.… wrote an affidavit, according to which a conversation between several employees of the applicant and Ms.… had taken place on September 8, 2011, during which Ms.… was asked about individual bookings in the operating year 2005 and given the opportunity for explanations . Ms. ... then cut off the conversation and told those present that she did not want to talk about this. With regard to the exact content of the affidavit, please refer to Appendix K5 (Bl. 113 f. D.GA).
Ms.… was interrogated by the police as a suspect in front of the Böblingen Police Department on November 22, 2011. According to the interrogation protocol (Annex K 11; p. 170 of the GA), she made no statement on the alleged breach of trust against the plaintiff.
On April 3rd, 2012 the branch employee of the defendant, Ms.… in connection with the allegations against Ms.… was questioned by the police as a witness. She testified that Ms. ... was a regular customer and went to the branch about twice a week to cash cashier's checks. Ms. ... always asked for a certain denomination, which she found on a slip of paper she had brought with her. This has always been the case over the years. This seemed to her to be a completely normal procedure, since other customers would also do the same when they took money. With regard to the further content of the interrogation of Ms.…, reference is made to the tape record of the Böblingen Police Department of April 3, 2012 (Appendix K3; Bl. 63 ff. Of the GA).
On the basis of an arrest warrant from the Stuttgart District Court of July 10, 2012, Az. 28 Gs. 813/12, Ms. ... was in custody from July 19, 2012 to July 20, 2012. The Stuttgart public prosecutor brought charges against Ms. severe case. With regard to some checks, according to the indictment, the defense submitted that these were made out for the payment of the employees ... and the cleaning lady 's wages or that the corresponding amounts had been put into the company coffers by Mrs. ... In their indictment, the public prosecutor assumes the accuracy of this statement in favor of the accused (p. 45/46 of the GA). With regard to the further content of the indictment and the status of the investigation, reference is made to Annex K2 (page 30 ff. Of the GA).
The main proceedings before the Stuttgart Regional Court have not yet been opened.
In a partial judgment of March 14, 2013, the Stuttgart Labor Court (Az. 15 Ca 5248/12) sentenced Ms.… to pay the plaintiff EUR 1,969,870.77 plus interest. In its reasons for the decision, the Stuttgart Labor Court justified the conviction of Ms. ... essentially with the fact that she did not substantiate the claimant's allegation that she had embezzled checks and incorporated the amounts in question into her own assets (p. 16 of the GA). In this respect, it had largely not fulfilled its burden of presentation with regard to the disputed horror, as it would have had to comment specifically on each individual check submitted by the plaintiff in copy (page 6; 7 of the judgment; Bl. 16/17 of the GA). With regard to the remaining content of the labor court judgment, reference is made to Annex K1 (Bl. 9 ff. Of the GA).
The plaintiff claims that Ms. ... had harmed the plaintiff for years and used cash checks in at least 135 cases in the period from November 29, 2006 to May 20, 2010, abusing her power of attorney. As a result, she suffered a total loss of EUR 540,545.91. The between 5.01. and 20.05.2010 cashed ten cashier's checks at the defendant's wife ... used her power of attorney and without any operational reason for private personal use. She is of the opinion that the defendant has violated its obligation to check due to the special circumstances of the check submission by paying out cashed check amounts to Ms. ... over the years without consulting the plaintiff. These would result in particular from the person who submitted it, the strongly changing check amounts, the high number of checks submitted and the general unusual nature of the check transactions. The defendant should therefore have noticed the machinations of Ms.… and would not have been allowed to pay out large amounts of money to Ms.… for years, unchecked and without consulting the plaintiff. Any contributory negligence was not to be blamed on her, as she could not be expected to discover the criminal machinations of woman ... if even the tax consultants and auditors remained hidden for years that woman ... harmed the plaintiff.
The plaintiff also claims that the seven in the period from 31.05. Checks cashed up to October 5th, 2010 were said to have been falsified by Ms.… who manipulated the amount shown. The respective amount was therefore wrongly paid to Ms. ... without any effective instruction from the plaintiff
Ms.… admitted her criminal machinations on September 8th, 2011 to a majority of the plaintiff's employees and made a corresponding confession. The testimony of Ms. ... also related to the checks at issue, so that these are included in the confession. In the pleading dated 02/03/2014, the plaintiff claims that Ms. ... admitted in the aforementioned conversation that the irregularities in the bookkeeping and on the bank accounts were her fault. Then she broke off the conversation and said that she did not want to make any further statements without a lawyer. She is of the opinion that, in view of the labor court ruling, it does not matter whether or not the admission includes the checks on loan.
The plaintiff initially applied for the defendant to be ordered to pay the plaintiff an amount of EUR 91,146.50 plus interest. After a judicial reference in the oral hearing on January 9, 2014 (p. 146 of the GA), the plaintiff is now requesting
to order the defendant to pay the plaintiff an amount of EUR 44,146.40 plus interest of 8 percentage points above the respective base rate since October 5, 2010;
to order the defendant to re-credit the damage suffered in the amount of EUR 50,000.00 with regard to the redemption of the seven falsified personal checks to the plaintiff's bank account.
The defendant moves that the action be dismissed.
The defendant alleges that the seven in the period from 31.5. Cashier's checks issued and cashed by October 5, 2010, only had the check amount entered in numbers / digits and without fill marks when it was signed by the applicant's manager. She is of the opinion that with regard to the seven cashed checks, no special circumstances or anomalies were apparent that could have triggered a review or other obligation. In any case, she would be entitled to at least one claim for damages against the plaintiff in the same amount for obvious and willful, but at least grossly negligent, violation of the bank's check conditions. The plaintiff also committed a further breach of duty by failing to set up suitable control mechanisms to monitor check transactions in order to prevent such abuse.
Reasons for decision
The action is admissible; in particular, the changeover of the action request with regard to the request for re-credit in section 2 of the action request according to § 264 No. 2 ZPO is permissible.
However, the action is unfounded.
The plaintiff has neither a contractual claim for damages against the defendant in connection with the payment of the ten checks in the period from 05.01. until May 20th, 2010 (1st), you are still entitled to re-crediting the seven cash checks paid out to Ms.… in the period from October 315th to 5th, 2010 (2nd).
1. The defendant did not breach any contractual obligations from the check contract existing between the parties when it was between 05.01. and 20.05.2010 accepted the ten disputed cash checks from Ms. ... and paid her the respective amount totaling EUR 44,146.50.
According to the established case law of the BGH, a bank that accepts a cashier's check for collection is generally not obliged to verify the authorization of the check holder, because according to the law, the authority to dispose of the bearer check is already shown by the possession (BGH, ruling v. 10. 12. 1973 - II ZR 138/72 = NJW 1974, 458; judgment of 21. 01. 1980 - II ZR 111/79 = NJW 1980, 2353). The bank does not have a general obligation to warn and check when making payments by cashier's check. The obligation to check the sender's authorization only begins when very special circumstances, especially in the person of the owner or the unusual nature of the business, suggest, based on general life experience, that the check may have been lost (ruling v. January 12, 1987 - II ZR 187/86 = NJW 1987, 1264). From this, however, the bank's duty to search for anomalies that could result from the difference between the submitter and the recipient named in the check cannot be derived. This would be an excess of the credit institution's duty of care.
As a rule, the bank fulfills its indispensable obligation to properly and carefully check the checks presented to it, provided that the authenticity of the checks is concerned, if it is convinced that the overall appearance of the check gives the impression of authenticity (BGH, Judgment of January 20, 1969 - II ZR 225/66 = NJW 1969, 694). In particular, if the cashier's check - as in the present case - is made out to the deliverer, there is usually no reason for the bank to doubt the redeemer's authorization.
There is no need to decide whether the defendant has complied with this general inspection obligation, since the ten cash checks at issue are undisputedly genuine cash checks. In addition, the checks have a uniform typeface, the check amount entered as a number corresponds to the amount written out in words. There are no signs of etchings, corrections or subsequent changes to the check. The defendant cannot be accused of a breach of duty in this regard.
The defendant was not subject to any additional, more in-depth inspection and control obligation. There was no reason for her to consult with the plaintiff's management as to whether Ms. ... was entitled to submit the ten cash checks at issue and whether the corresponding amounts could be paid out to her. The bank referred to has to check the material entitlement of the redeemer only if there are special circumstances which justify the suspicion that the person presenting the check is not factually justified (BGH, decision of October 31, 1995 - XI ZR 69/95 = NJW 1996, 195 ; M. Hakenberg in: Ebenroth / Boujong / Joost / Strohn, Commercial Code, 2nd edition 2009, II242 mwN)
In the present case, the other circumstances surrounding the cashing of the check do not result in any obligation on the part of the defendant to examine and control the entitlement of Ms. ... in more detail (a). It was not evident to the defendant that the ten cash checks at issue were used by Ms. ... for non-company purposes, and it is not even certain that the check amounts paid out were used for private purposes at all (b).
a. The external circumstances surrounding the cashing of the check do not indicate that the defendant violated its duty of inspection and control vis-à-vis the plaintiff. The court is unable to identify any abnormalities or special circumstances in connection with the plaintiff's check transactions that could result in a breach of duty by the defendant.Admittedly, it is recognized in the case law that if the amount of the cashier's check is unusual, the suspicion that the check is being misused is more likely than the assumption that the account holder, contrary to his usual custom, has exceptionally issued a cashier's check for an unusually high amount ( BGH, ruling of December 9, 1985 loc. Cit.). A bank that is aware of the circumstances that result in a cash check for a large sum exceeding the sums customary in other check transactions with the customer to an extraordinary extent must consider that the check is misused. It follows from this that it is then obliged to obtain clarity about this, insofar as this is compatible with the requirements of check transactions as mass traffic.
However, there are no such noticeable deviations in the present case. According to the undisputed submission of the defendant, Ms. ... has regularly cashed cash for years, whereby the individual check amounts amounted to a maximum of EUR 8,900.00. The disputed here in the period from 05.01. Ten cashier's checks cashed on and 20.05.2010 ranged between EUR 1,590.00 and EUR 6,462.80 and were thus within the usual range. The frequency with which checks are cashed also does not result in any obligation to review or provide information on the part of the defendant. Since Ms. ... cashed cashier's checks with the defendant for years, the defendant could assume that cashier's checks are a common part of the plaintiff's payment transactions. Even if the use of personal checks in general payment transactions is said to be declining, this was in any case not the case with the plaintiff. Ms.… has cashed the plaintiff's checks for years without the plaintiff objecting to the defendant about this procedure. The fact that the plaintiff used a supposedly out-of-date means of payment in the course of its business operations does not mean that the defendant has any inspection and control obligations. Especially since the cashed cashier's checks are owner's checks that can be cashed by any deliverer. The mere possession of the checks establishes the - albeit rebuttable - presumption for the material legitimacy of the holder. Since Ms.… regularly cashed the plaintiff's cashier's checks at the defendant's, the person who redeemed it did not give any indications for the assumption of a lack of authorization.
b. The plaintiff, who is required to provide evidence in this respect, was unable to provide evidence that the ten cash checks cashed by Ms. ... in the dispute at issue were actually used privately for herself (1.). Even if this were the case, this would not have been apparent to the defendant (2.).
(1). The defendant has denied that the ten cash checks from Ms. ... were used for private purposes. Contrary to the plaintiff's view, it is not certain that Ms. ... used all or even only one of the cashed cashier's checks for non-company purposes. In particular, with regard to the ten cash checks relevant to the dispute, this results neither from a corresponding confession by Ms.…, nor from the indictment of August 14, 2012 (Appendix K2) or the judgment of the Stuttgart Labor Court of March 5, 2013 (Appendix K1).
Contrary to the presentation of the plaintiff, Ms.… did not confirm and admit her alleged “criminal machinations” to several employees of the plaintiff on September 8, 2011. In particular, the “criminal machinations” were not specified to the extent that it would be certain that the cashing of cashier's checks at issue here are also included. The plaintiff's offer of evidence by questioning the plaintiff's liquidator, Mr ..., could not be complied with, as it was not presented what Ms. ... is supposed to have said specifically about the check cashing in question. The general questioning of the named witness about the content of the conversation would constitute an inadmissible search for evidence by the court. In addition, there is already the affidavit of the former managing director of the plaintiff. Mr.… from 09/12/2011 shows that Ms.… did not provide any information on the matter. Rather, Mr.… stated in his affidavit that during the conversation Ms.… had been given the opportunity to explain individual bookings from 2005 and some checks presented to her as examples, whereupon Ms.… “broke off the conversation and told [us] [has] that she doesn't want to talk about this ”(Appendix K5; Bl. 114 of the GA). The allegation that Ms.… abe admitted her criminal machinations on September 8, 2011 is already countered by the affidavit submitted by the plaintiff. A comprehensive confession from Ms.… that encompasses the check cashing at issue ... the court is unable to recognize from the plaintiff's submission.
In the letter from Ms.… to Mr.… dated September 8, 2011 (Appendix K6; Bl. 115 of the GA), Ms.… only apologized for the “grief” that she had caused and stated that she was addicted to gambling as the reason that she “took the money”. Although the letter suggests misconduct and embezzlement of money by Ms.…, the letter cannot be regarded as a confession with regard to the allegations at issue here. Neither the cashing of cashier's checks for private purposes is mentioned, nor the cashing of the check in the period from 05.01. and May 20, 2010.
Ms.… as evidenced by the interrogation protocol of the Böblingen Police Department dated November 22, 2011 (Appendix K 11; Bl. 170 d.GA) during her interrogation by the police as a suspect, she did not comment on the offenses of which she was charged. Rather, she relied on her right to refuse to testify.
The indictment of the Stuttgart public prosecutor's office on August 14, 2012 (Annex K 2) also does not constitute evidence that Ms. ... used the cashier's checks cashed in the period at issue for purposes outside the company. According to the Stuttgart public prosecutor's office, there is only sufficient suspicion for the woman ... alleged acts. The indictment itself, however, only documents the prosecution's will to prosecute and prosecute and, by describing the offense submitted for judgment, defines the subject of the judicial proceedings (delimitation function). The charge is only confirmed by the final conviction of the accused by the criminal court. This has not yet happened in the present case.
In addition, even the final conviction of woman ... for the offenses accused of her under the indictment would not have any binding effect on the civil court proceedings. A binding of the civil judge to criminal judgments is not compatible with the free assessment of evidence, which dominates civil procedure law. The civil judge must in principle form his own conviction and is usually not bound by individual factual findings of a criminal judgment (BGH, decision of February 16, 2005 - IV ZR 140/04 - juris).
As a result, the indictment of the public prosecutor's office is unsuitable as evidence that Ms. ... during the period in question used the cashier's checks for purposes outside the company.
The same applies to the partial judgment of the Stuttgart Labor Court of March 5, 2013 (Appendix K1; Bl. 9 of the GA). As the labor court stated in one of the reasons for the decision, the conviction of Ms. ... was based on the fact that she had not substantiated the check cashing at issue there, which is why the district court undisputed the plaintiff's submission. The labor court judgment does not reveal that Ms. ... admitted the relevant acts here.
In the present case it is not certain that the ten, in the period from 05.01 and 20.05.2010 by Ms.… cashed cashier's checks were used for non-company purposes under abuse of her power of attorney.
(2) Even if Ms. ... should have abused the checks at issue, this would not lead to any accusable breach of duty on the part of the defendant. Neither the plaintiff herself nor the auditors and tax auditors commissioned by her did not notice any embezzlement by women under abuse of their power of attorney for years. In the opinion of the court, the defendant's inspection and control obligations as an account-keeping and check-cashing bank do not in any case go beyond those of the plaintiff. According to her own lecture in the pleading dated December 23, 2013 (sheet 111 of the GA), it was not possible for him to discover the alleged “criminal machinations” of Ms.…. The plaintiff further stated that “if even an auditor did not notice that Ms. ... embezzled funds, this cannot be expected from a corporation”.
The reasons why the defendant should have noticed that Ms. ... used the cashier's checks for supposedly non-business purposes was not explained in detail by the plaintiff. As already stated, the fact that Ms. ... regularly cashed the plaintiff's cashier's checks in the amount of up to EUR 8,000.00 over a long period of time does not give rise to any control and information obligations on the part of the defendant.
2. The plaintiff also has no claim against the defendant for re-crediting of the amounts in the period from 31.5. Seven cash checks from § 675 u, sentence 2 BGB, cashed by October 5, 2010. Such a claim presupposes that the payment of the check amounts to Ms. ... was not based on an effective check order from the plaintiff. There was a dispute between the parties as to whether Ms. ... subsequently falsified the seven cash checks at issue. Falsification of a check is understood to mean the subsequent change to the contents of a genuine check, so that there is no effective check transfer of the account holder to the bank drawn. According to established case law (see BGH, judgment of March 18, 1997 - XI ZR 117/96 = NJW 1997, 1700; judgment of June 19, 2001 - VI ZR 232/00 = NJW 2001, 2629) and the prevailing opinion in In the literature (cf. Caspar in: Baumbach / Hefermehl, Art. 3 ScheckG Rn. 16; Houses in MüKo-HGB, Volume 5 BankR, Rn. D 128 mwN), the bank concerned is therefore not entitled to reimbursement of expenses according to §§ 675 Paragraph 1 , 675 BGB, so that it is not allowed to debit the customer's account and has to correct an account debit made by a value-neutral re-crediting of the debited amount.
The checks presented in Annex K4 undisputedly bear the real signature of the then managing director of the plaintiff, Mr.… In addition, the respective signatures corresponded to the signature sample deposited in the optical archive of the defendant. In addition, the cashier's checks have a uniform typeface, subsequent additions or corrections are not recognizable. Rather, the cashier's checks presented give the impression that they were filled out by a person. The external characteristics of the cashier's checks do not indicate that they were supposed to have been changed afterwards.
The fact that the cashier's checks were falsified by Mrs. In this respect, reference is made to the statements made above under Section 1b.
Ultimately, this question did not require a decision, since the plaintiff violated her duty of care under the check contract with the defendant and the defendant would be liable for damages in the same amount due to a positive breach of contract.
There is a breach of duty of care if the issuer does not fill out the check form clearly or in a forgery-proof manner, e.g. only gives the check total in figures (RG, judgment of January 16, 1918 - V 299/17 - juris; Caspar in: Baumbach / Hefermehl, Art 3 ScheckG, marginal 18) or fill lines, so that it is possible to write it down without any problems (Nobbe in: Schimansky / Bunte / Wowski, Bankenrechts-Handbuch, 4th edition 2011, volume 1, § 60 marginal 114).
By making it possible for Ms. ... to add cash checks already signed by the authorized person and to increase the amounts paid out, without the subsequent manipulation of the checks being recognizable, she violated her duties of care under the check contract with the defendant. According to No. 2 of the special conditions for check transactions agreed between the parties (Annex B2; Bl. 164 of the GA), the plaintiff, as the account holder, was obliged to use the check amount “in numbers and letters, stating the currency, so that nothing was added can. "
According to the plaintiff's submission, Ms. ... falsified the amount of the check after she presented this Mr. ... for signature, both in words and in numbers. This is only possible if the cashier's check was either signed blank beforehand and filled in by Ms. ... only afterwards, or if only the amount was entered in numbers and without a fill line when it was signed by the defendant's manager.
In the affidavit dated September 12, 2011, the then managing director of the plaintiff stated that Mr. ... Mrs. ... had falsified several checks by increasing the amount after he had already signed the checks (Appendix K 5; p. 114 of the GA) . Although this declaration relates to events between February and May 2006, when Ms.… also had no power of attorney, it nevertheless shows that Ms.… was basically enabled to add to the check amount after signing the check, without any abnormalities in the external appearance of the check cause. The plaintiff denies that her managing director at the time, Mr. ... signed the checks blank, but claims that Ms. ... filled out the checks in terms of the amount in numbers and letters and then added another digit to the check amount after it was signed by Mr. ... and that advertised amount manipulated.
A subsequent increase in the check amount by adding the number is only possible if the area to the left of the number already entered has not been blocked with a fill line. The same applies to the amount of the check in words. Subsequent manipulation requires that the amount has not been entered left-justified. In any case, the plaintiff violated her obligation under the check contract to use the amount “in such a way that nothing can be added”. This represents a breach of duty of care, which would oblige the defendant to compensate the claimant for the damage suffered as a result.
In the present case, the plaintiff was unable to present how a subsequent manipulation of the check amounts by Ms. ... could have taken place without her then managing director, Mr ..., having violated the duties of care under the check contract with the plaintiff when signing the cashier's checks.
If the seven checks at issue are falsified checks, the defendant is entitled to a re-crediting against the plaintiff from § 675 u BGB, at the same time it would be the plaintiff for damages in the same amount for breach of their duty of care under the check contract according to § 280 para. 1 BGB.
In the absence of interests worthy of protection, the claiming of a service according to § 242 BGB, which would have to be returned immediately, is not permitted. According to the rule “Dolo facit qui petit quod statim redditurus est”, a monetary claim can no longer be enforced if the debtor could claim this amount back as compensation immediately after payment (Roth / Schubert in: MüKo-BGB, 6th edition 2012, § 242 marginal no. 411 with further references).
The action had to be dismissed in its entirety.
The decision on costs is based on Section 91 (1) ZPO. The provisional enforceability of the judgment results from § 709 sentences 1 and 2 ZPO.
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