The BGH based its ruling on the following facts: the plaintiff bought land from the defendant in a notary contract dating 10/07/1992. The defendant was represented by an agent without power of agency, who previously had bought the piece of land from a third party in the name of the defendant, but also without power of authority, in contract dating 15/04/1992. Then the defendant approved the sales contract with the plaintiff; he did, however, not approve the previous transaction. As a result, he could not transfer property in the land to the plaintiff. The latter incurred expenses for the notary and the Court in the course of concluding the contract. In addition, he had to consult a lawyer in order to ask for legal advice concerning the non-performance of the sales contract. The first Court ruled in his favour, the Court of Appeal reversed the decision. The plaintiff's appeal at the BGH proved successful: the buyer can ask for compensation for expenses incurred that are rendered futile by the seller's non-performance of the contract if these expenses would have resulted in a counter-value in the case of performance, a condition which is governed by a — rebuttable — presumption (‘presumption of profitability’).
In another case (BGH NJW 1993, 2527), the BGH held that this presumption, in relation to a pending transaction, was rebutted since expenses were incurred despite the fact that the other party was entitled to terminate the contract. The present case is, however, different in that the transaction ceased to be pending as soon as the contract was approved of. Only then did the defendant refuse to perform for reasons outside the parties' relationship. In the following case notes, the authors will analyse this decision from the Austrian and Spanish point of view.European Review of Private Law