OGH: Claim for reimbursement of insurance benefits

Dec 1, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) deals with the question of the statute of limitations for a claim for reimbursement of erroneously paid compensation payments, as well as with the commencement of the limitation period for such a claim for reimbursement.

The subject of the appeal was the disputed question of whether the plaintiff was entitled to a claim due to unjustified enrichment in favor of the defendant according to Section 1431 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB), and if so, whether the limitation period for this was 30 years or 3 years, and when a three-year limitation period began to run.

In the case of an undue payment, an item can be reclaimed according to Sec. 1431 ABGB if this item was paid out of an error and the recipient has no right against the payer.

The OGH states that a claim due to unjustified enrichment requires that there is no obligation to pay, but that the payer is mistaken about precisely this circumstance. The payer must have paid with the intention of fulfilling a debt and the payment must be based on an error concerning the debt to be paid or the object that the payer paid. Fault is irrelevant, because the recipient should not be unjustly enriched. If even a part of the payment is made without a legal basis, the condemnation of the payment is permitted.

In the event that the payer deliberately intended to discharge an undue payment, Sec. 1432 ABGB expressly excludes the claim for restitution. In the case of mere doubt, reclamation is generally permissible as soon as the lack of reason becomes apparent. However, according to the OGH this does not apply if, from the recipient's point of view, the payment could be understood in such a way that the payer wanted to settle the disputed existence of the debt by balancing it ("conclusive acknowledgement"). If the debtor wants to avoid such an interpretation, he must make a provision when making the payment, otherwise this excludes a reclamation from the bona fide recipient according to Sec. 1431 ABGB.

According to the case law of the OGH, the insurer can also demand reimbursement of the payment under the conditions of Sec. 1431 ABGB. The insurance company must prove that the service it provided was to settle a debt that did not actually exist and that it was mistaken in making the payment. According to the OGH, the long limitation period of Sec. 1478 ABGB applies to the insurer's claim for indemnification under Sec. 1431 ABGB (30 years). The statute of limitations begins at the time the service is rendered.

OGH 9 Ob 44/21t (02.09.2021)