Die Pflicht zur Herausgabe

The examination sheds light on the claims for restitution under German civil law for the German general law of obligations. Therefore, Simon Manzke examines the distribution of the risk of performance (Leistungsgefahr). It is shown that two questions must be kept strictly separated: The extent of the duty to perform (Herstellungspflicht) concerns the question of whether the debtor is obliged to restitute in a specific condition. The material risk (Sachgefahr), on the other hand, asks who is affected by the risk of random deterioration. The relationship between the two is determined for rent, lease, lending, safekeeping, contractual relationship, replevin (Vindikation) and action to reclaim enrichment obtained by performance without cause (Leistungskondiktion), thus developing a system into which claims for restitution are integrated.