Verwendungen im Eigentümer-Besitzer-Verhältnis

Improvements of another's property are governed by two different sets of rules under German law. On the one hand, they fall within the ambit of the law of unjust enrichment, as they do in France or England. On the other hand, the BGB (German Civil Code) contains particular provisions for improvements made by a possessor who is exposed to the rei vindicatio (§§ 994-1003 BGB). These provisions derive from Roman law. Their purpose was to fill the gap which resulted from the absence of a general enrichment claim in Roman law. With the development of a general enrichment claim such as § 812 I BGB, however, they can no longer serve this aim. Indeed, it seems as if they have become redundant in modern law. It is suggested, therefore, that de lege ferenda German law, and possibly a future European codification, should follow the French or the English model. Both these jurisdictions have not adopted the Roman approach; instead, they apply the rules of the law of unjust enrichment.