Bereicherungsausgleich bei Eingriffen in höchstpersönliche Rechtsgüter

The scope of the law of restitution – as set out in section 812 subsection 1 sentence 1 alternative 2 of the German Civil Code – for violations of legally protected personal rights has largely been terra incognita so far. Violations of life, body and health, freedom and sexual self-determination are mostly seen as an exclusive matter of tort law. Only with respect to the general right of privacy have initial attempts been made in the field of unjust enrichment. The present monograph closes this gap. Applying the law of restitution to violations of legally protected personal rights puts the prevailing doctrine into a new perspective: It becomes apparent that this doctrine simulates contracts regardless of the parties' intentions and is a mere recurrence of the seemingly overcome doctrine of factual contract. Based on the dogmatic and practical concerns the author pleads for a new understanding of the compensation for unjust enrichment gained by tort.