Germany 2018-12-05

Contracts with debt collection firms in Germany

The term 'quasi-contract' ('as if a contract') is a misnomer. A misnomer which was due to an accident of history. Paradoxically a quasi-contractual claim is a claim to what is owed, otherwise than by way of contract. Being a claim to what is 'owed' it is, in ultimate analysis a proprietary claim, like a claim for the recovery of money. The basis of it is broad, for it seeks to prevent 'unjust enrichment' of one party at the expense of another. What is to be thus legally treated as 'unjust' has been based upon the ultimate sense of practical morality of the German courts. Though, after all, that is a truism because, as was pointed out above, the German law as a whole has been developed upon the basis of the judicial sense of what is socially 'just'.
Very brief mention may be made of some of the classes of quasi-contractual actions in the modern law; they fall, roughly, under three heads:
Actions for money had and received
Where, for some reason, the client pays money to the debtor to which the creditor is not entitled, he may recover it. Thus, money paid upon a total failure of consideration must be returned. This may happen, for instance, where, under a valid contract, one party pays money to another who entirely fails to honour his side of the bargain. An action will also lie for money paid by mistake. This, of course, need not necessarily involve a breach of contract: so that the claim will lie where, for example, money has been paid under a contract which is void by reason of an operative mistake - as where, unknown to the parties, the subject matter of the contract with a German person had ceased to exist at the time of the making of the contract. This type of action also covers the case where the client has paid money to the bank by mistake, thinking that the invooice was unpaid. But the mistake involved must be one of fact, not of law. We are all expected to know the law. Since the 'law' is in a state of continuous evolution no one more than a legal author realizes that this is a counsel of perfection. But, of course, the rule is one of 'policy'. People cannot be permitted to avoid the consequences of their acts simply by saying 'But I did not know the law!'.
Actions for money paid
The full name for this action is 'money paid to the use of another'. 'Use' is a mediaeval term and 'for the benefit of another' would now be a more appropriate expression. This kind of claim will lie in favour of law firms where the customer owes the vendor a debt which another client has instructed him to pay. But it seems that it will only lie if the client has notified the creditor that he is not willing to make the payment to him. Similarly, an action will lie in favour of an assignee of a debt against the principal debtor, or in favour of a surety against the person whose debt he has paid. Though it is to be noted that in the latter case the claim will only normally lie where the surety has been requested by the debtor to act as such: people cannot act as sureties for others without their knowledge and then claim indemnity.
Actions for services rendered and benefits conferred
An action upon a quantum meruit where the defendant has broken his contract and the plaintiff claims, not upon the contract, but for the value of the benefit he has conferred upon the defendant, falls under this head. So also, in all probability, does a claim against a minor for a reasonable price for 'necessaries' supplied at home and elsewhere.
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