Abstract: In two identical judgments of the Bundesgerichtshof (German Federal Supreme Court) of 10 November 2005? the claimants were awarded restitution of sums they had paid to the respondents for the purpose of participation in a so-called ‘gift community’. The gift communities were organised like a kind of pyramid. The members at the summit of the ‘receiver community’ received certain sums from the ‘giver community’ below them. Thereupon the ‘receivers’ dropped out of the ‘game’; those previously occupying ‘giver’ positions then took their place. This meant that enough participants then had to be recruited to occupy the ‘giver’ positions below them. Their recruitment was the responsibility of the new members. In knowledge of this system, the claimants joined a ‘giver community’ and paid EUR 1.250 to the defendants, who alongside others constituted the ‘receiver community’. They wanted to remain in the game and later become ‘receivers’ themselves. It was only when this plan backfired that they demanded their money back from the ‘receivers’. The subsequent claims were successful in all three instances.
The Bundesgerichtshof allowed a claim of restitution according to § 812, 1st sentence, 1st alternative BGB (Bürgerliches Gesetzbuch ? German Civil Code), as the ‘gift community’ arrangement was void according to § 138 (1) BGB and the EUR 1.250 was thus paid to respondents without legal basis. The central issue in the judgments was the applicability of § 817, 2nd sentence BGB, according to which a claim for restitution is barred where both parties are at fault. The court rejected its applicability and stated that the reason for, and protective purpose of, the sanction of nullity (§ 138 (1) BGB) would in this case exceptionally preclude application of the bar on restitution of § 817, 2nd sentence BGB, as the vast majority of participants – in contrast to the initiating ‘members’, who would (for the most part) realise a guaranteed profit – would not make a profit; rather, they would necessarily lose their ‘contribution’. It is precisely such immoral conduct that § 138 seeks to discourage by the sanction of nullity. This would however be subverted if – irrespective of the nullity of the game – the respondents were allowed to keep the money they had acquired by immoral means. Neither does this restrictive interpretation of § 817, 2nd sentence BGB contradict § 762 (1), 2nd sentence BGB, which precludes restitution of anything paid in the context of a game, as the provision only applies if the claim to restitution is based on the gaming nature of the arrangement.
Résumé: Dans deux décisions rendues par la cour suprême allemande au texte identique du 10 Novembre 2005,? les demandeurs requirent le remboursement d’un montant qu’ils avaient versé aux défendeurs dans le but de participer à une ’vente pyramidale’. Comme leur nom l’indique, les ventes pyramidales étaient organisées selon le principe d’une pyramide. Les membres au sommet, les ‘bénéficiaires’, obtinrent du subordonné réseau des investisseurs entrants des sommes déterminées. Les ‘bénéficiaires’ quittaient ensuite le ‘jeu’; ils furent remplacés par ceux qui jusqu’alors étaient ‘en European Review of Private Law