The meaning of bona fides – this time in relation to unjust enrichment
The law stipulates that a person who is enriched at the expense of another without a valid legal basis shall also reimburse the latter. The deprived person has a claim regardless of the existence of a legal basis from the beginning (e.g. fulfilment of a void contract) or whether the legal basis ceases to exist later (e.g. early termination of a lease agreement by mutual consent where rent was paid upfront) or if the legal basis fails to materialize (e.g. wedding gift to an engaged couple but they never get married).
The law further defines that in addition to what has been obtained unjustly, also the fruits shall be returned and default interest shall be paid. For example, if someone receives real estate in the absence of a valid legal basis and rents it out, he/she must return, in addition to the real estate, all the rent received. However, the law distinguishes between a bona fide and mala fide buyer. The mala fide buyer, on one hand, must return all the fruit and pay the default interest from the date of acquisition, and the bona fide buyer, on the other hand, only as of filing of a claim for unjust enrichment. Anyone who becomes mala fide between the acquisition and filing of a claim must, according to established case law, return the fruits and pay default interest from the date he becomes mala fide, regardless of whether he was bona fide at the time of acquisition.
The question of a bona / mala fides in the context of unjust enrichment was also addressed by the Supreme Court in two recent rulings (II Ips 60/2020 and III Ips 32/2020). In the first ruling, the Supreme Court emphasized that mala fides cannot be equated with intent and that the person who “only” acts negligently can also be mala fide. According to the Supreme Court, a person is mala fide if he knows (or, in accordance with reasonable diligence, could and should have known) about the circumstances that gave rise to a claim for unjust enrichment. Therefore, the Supreme Court ruled in that case that the seller of the real estate was mala fide at the time of the conclusion of the purchase agreement, as she could have known, under the given circumstances, that the real estate in question had already been sold by her legal predecessor and had thus acted mala fide in this regard. A certain degree of diligence is also required on the part of the seller when concluding the purchase agreement, and the seller (under the circumstances known to her in this case) should not have relied solely on the land register. Therefore, due to the invalidity of the purchase agreement, the seller had to pay, in addition to refunding the purchase price, default interest to the buyer from the date of receipt of the purchase price and not only from the date of filing of the action.
According to the second ruling of the Supreme Court, a person who receives a payment based on a final judgment becomes mala fide only when he/she becomes aware of the judgment of the Court of Appeal, according to which he/she must reimburse the unjustly received payment, and not from the day the appeal was filed. This decision is interesting especially because it distinguishes between the occurrence of mala fide of the payee based on a final judgment in the case of Article 193 OZ (which regulates the delivery of fruits and payment of default interest) and Article 195 OZ (which stipulates that unjustifiably paid compensation for bodily harm, damage to health or death cannot be claimed if it has been paid to a bona fides recipient). In the first case, mala fides occurs only when the recipient learns or should have learned of the decision of the court of audit, based on which the recipient must return the unduly received payment, and in the second case already from the notice of filing the audit.
In some exceptional cases defined by law, however, the unjustly enriched person may keep what he/she received if the deprived person, for example, pays something even though he/she knew that he/she was not required to do so (unless he/she reserves the right to demand repayment or if he/she pays only to avoid force) or if someone fulfils a natural obligation (e.g. a statute-barred claim) or a moral obligation. Neither is it possible to demand repayment of unjustly paid compensation for personal injury, damage to health or death if it was paid to a bona fide recipient.
Author: Martin Pirkovič, Associate
