Suchergebnisse

Belgium illustrates the traditional European civil law tradition of emphasis on principles of civil litigation based on individual rights and standing. That tradition, requiring legislative rather than judicial authorization, has blocked general reform of collective representation and led to gradual recognition of individual and rather complex exceptions, overlaid by EU measures. No innovative reforms have yet crystallized.

Belgium illustrates the traditional European civil law tradition of emphasis on principles of civil litigation based on individual rights and standing. That tradition, requiring legislative rather than judicial authorization, has blocked general reform of collective representation and led to gradual recognition of individual and rather complex exceptions, overlaid by EU measures. No innovative reforms have yet crystallized. [Reprinted by permission of Sage Publications Inc., copyright The American Academy of Political and Social Science.]

The ruling of the BGH was based on the following facts. In 1986 the claimant received several securities from the father of both litigating parties. Their father had a power of disposal over the claimant's bank account and the securities deposit, respectively. In 1994 the father — in agreement with Defendant, being the claimant's sister — arranged for a transfer of the securities to Defendant's deposit. The claimant argued that his father has thus abused the power of authority conferred upon him. Defendant allegedly knew of the ultra vires nature of this action. In addition, the transfer of the securities had fiduciary effect only. Defendant disputed that the securities were part of the claimant's property. Also, she argued that she was not aware that they were transferred from the claimant's deposit. From her point of view, the transaction was a gratuitous grant originating from her father's property.
The District Court ruled in favour of the claimant; whereas the Court of Appeals dismissed the action. The ensuing appeal to the BGH brought by the claimant resulted in a reversal of the latter ruling and the case was subsequently referred back to the Court of Appeals.
In this case, the BGH discussed the relevant provisions contained in the law of unjust enrichment. Art 816 para. 1 2nd sentence BGB was held not to be applicable since the element of disposal by an unauthorized person was missing. Then, the BGH considered Art 812 para. 1 1st sentence ('on account of the claimant') as a basis for holding the claimant accountable, the requirements of which are prima facie complied with:
The securities were part of the claimant's property; the excess of authority was met by the gratuitous disposal effected by the authorized person, i.e. the father. Both elements do not amount to a justification for keeping the securities in question in the meaning of Art 812 para. 1 1st sentence. It is, however, of the essence how the transfer of securities to Defendant is to be qualified (for instance, as a benefit/performance by the father to Defendant; cf. principle of priority of the Leistungskondiktion).
This assessment, in turn, depends on various other circumstances (such as the expectations of the parties involved; the viewpoint of the beneficiary, etc.) in respect of which the Court of Appeals has not yet asserted the necessary facts.
The following case note discusses the decision by the BGH in the light of Belgian, Dutch, Italian, and Greek Law.

The different treatment of victims, in relation to limitation of civil actions for damages, depending on whether the fault causing the damage constitutes a criminal offence or not (Art 26 Preliminary Title of the Code of Criminal procedure), has the effect that a party who has suffered damage is in a fundamentally less favourable situation when the damage is caused by a fault constituting a criminal offence as compared to the case where the fault does not constitute a criminal offence.
In those cases where the damage only becomes apparent after a long period of time, this
leads to a serious limitation of the rights of the victim, out of all proportion with the interests which the legislator of 1878 and 1961 sought to protect, namely the right of the tortfeasor to put his past behind him, legal certainty and the public interest in avoiding a new disturbance of social peace and order where it has been restored in the meantime. These preoccupations justify specific periods of limitation for penal actions, according to the gravity of the offence. They do not, however, justify the position where the limitation period for a civil action for damages caused by these facts is five years — even taking into account the amendments which have been effected by legislation and case law — when compensation for damage caused by fault, which does not constitute a criminal offence, can be claimed for a period of thirty years. There is thus no reasonable proportionality between the measure and its effects on the victims of criminal offences.

The case decided by the Belgian Hof van cassatie/Cour de cassation on 31 January 2002 concerns the effects of avoidance in bankruptcy of an impeachable transaction by the bankrupt debtor disposing of assets, and especially the conflict with a subsequent acquirer of these assets. The bankrupt debtor (Transport de Koning) had transferred shortly before bankruptcy a trailer in lieu of payment to its creditor Diemotrans. Diemotrans had sold and delivered the trailer shortly after bankruptcy to a subsequent buyer in good faith, the LLC André. The insolvency administrator (Driessen) asked the court for a declaration of ineffectiveness of the transaction vis-à-vis the creditors and a condemnation of LLC Andre to restitute the trailer to the bankrupt estate. The Court decided that the claim of the insolvency administrator fails insofar as the conditions for bona fide acquisition by LLC Andre are met (actual possession and good faith).