The decision of the BGH was based on the following facts: The claimant made a living as an ‘heir locator’. Following an advertisement published in the Bundesanzeiger on behalf of the probate court inviting the heirs of an estate to make themselves known, the claimant identified the defendant and his sister as the deceased's intestate successors. He indicated this to the defendant and offered to make full disclosure to him of the particulars of the estate after conclusion of an agreement for a fee of 20 per cent of the inheritance due to him plus VAT. The defendant refused the contract offered and himself traced the inheritance on the basis of the information provided by the claimant; he obtained assets amounting to almost 50,000 Euro as a result. In his action the claimant demanded payment of 20 per cent of that sum plus VAT. The claim failed, both before the Landgericht and the Oberlandesgericht as well as before the BGH.
In its reasoning the BGH indicated that the claim to a fee could not be based on a right arising in negotiorum gestio under §§ 683, 670 BGB or §§ 684, 812 BGB. Admittedly the location of an heir could constitute an undertaking which was also in another's interest, and the matter would turn on whether the factual presumption of an intention to manage another's affairs (equally applicable to an undertaking which was also in another's interest) was rebutted. That way of formulating the issue, however, would misconceive the approach to the allocation of risk which should follow from the principles of private law, and in affirming the presence of an intention to manage another's affairs would lead to results which would not be intrinsically appropriate and would not do justice to the interests in focus. In the first place, it is the preparation and opening of negotiations which is in issue. The heir locator intended to ‘sell’ the information he had uncovered and thus carried the risk that the negotiations might fail. According to the rules of private law one's own preliminary expenditure should remain unrecompensed. The fact that the claimant had in part already conveyed his results to the heir does not change anything: there is no obligation to provide recompense for unsolicited communication of information; a consideration for that service is payable solely on a contractual basis. Secondly, the acceptance of a negotiorum gestio would lead to the unfair result that were multiple heir locators to operate independently of one another the heir would see himself burdened with claims from all of those tracing him and his estate and, though notified by the first of them, would not be able in relation to the others to rely on the fact of his prior knowledge — as is the case with multiple brokers.
The following contributions examine the decision from the perspective of Austrian, Portuguese, Spanish and English and Irish law.
European Review of Private Law