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A german court does not have to gather additional evidence offered on a disputed fact if it can base its conviction within the meaning of section 286(1) of the Code of Civil Procedure (ZPO) on other circumstances, such as the content of a party hearing alone (BGH, 10.03.2021 – XII ZR 54/20). This applies independently of aspects of the so-called equality of arms. However, it must consider any counter-evidence that may be given. Only when the result of this (counter-)evidence takes the degree of conviction below the threshold required for § 286 (1) ZPO, there is reason to consider the evidence offered as the main evidence in the first place.

The decision of the Federal Supreme Court of 10 March 2021 – XII ZR 54/20 deals with questions of the assessment of evidence or findings within the meaning of section 286(1) of the ZPO that recur in practice.


The claimant had lived with a testator in a non-marital partnership since 2004. When the testator died unexpectedly in 2015, the defendant, among others, became the legal heir. The claimant is suing the defendant for repayment of an amount of approximately EUR 200,000 under the aspect of the lapse of the basis of the transaction (§ 313 BGB) or unjust enrichment (§ 812 para. 1 sentence 2 BGB).

The claimant stated that the EUR 200,000 had never been a gift to the testator. Rather, the funds had served to finance land owned by the testator. A security for a possible repayment claim had been waived because she and the testator wanted to marry in 2016 and had assumed that everything would become joint property after the wedding anyway.

  • To prove the intention to marry, the claimant had named three witnesses.
  • The Regional Court only heard the claimant and granted the application based solely on the content of this hearing.

In doing so, it assumed that the parties had actually planned a wedding in 2016 and that, against this background, it had not been a gift but a community-related donation.

It stated the following reasons: It was not clear why the couple had suddenly wanted to marry after living together without a marriage certificate for more than eleven years. Nor was the claimant’s statement credible that they had waived the costs of a transfer of ownership because of the impending marriage, because they had assumed that everything would become joint property with the marriage. This was because the marriage did not change the ownership situation and did not lead to any form of security in rem with regard to the payment in question.

The claimant objected to this with her appeal for non-admission.


The Senate set aside the decision of the Higher Regional Court due to violation of the right to be heard pursuant to § 544 para. 9 ZPO and referred the case back to another senate of the Higher Regional Court.

The assessment of the claimant’s statements is already afflicted with errors of reasoning and violations of the basic principles of experience, such as the reproach of not having ensured that a claim – which did not even exist before her death – was secured in the land register, or the general suspicion of an intention to marry after eleven years of living together, which was applied in an irrelevant manner.

Apart from this, the Higher Regional Court should not have treated the claimant’s assertion as unproven without fully taking and assessing the formal evidence that had been adduced beyond the personal hearing.

Article 103.1 of the German Consitution obliges the court to consider the submissions of the parties to the proceedings. In this context, the requirement of the right to be heard as a fundamental procedural right is intended to ensure that the decision is free of procedural errors which have their basis in the failure to consider the parties’ submissions. In this sense, Article 103 (1) of the German Consitution, in conjunction with the principles of the Code of Civil Procedure, requires that substantial requests for evidence be taken into account. (…)

The challenged decision does not meet these requirements.

In her application, the claimant had already submitted evidence that she and the testator had planned their marriage for spring 2016 by offering three witnesses, including her attorney at first instance. In her response to the appeal, she referred to her submissions at first instance, including the evidence offered there.

  • It is true that the Court of first instance did not have to consider the witness evidence offered by the claimant, since it had already based its conviction on the plaintiff’s statements alone.
  • However, if the Higher Regional Court, in deviation from this, did not consider the personal hearing sufficient to establish an opinion, it either had to additionally take and assess the further witness evidence offered or – if it considered the witness evidence offered to prove the fact of the intention to marry as not sufficiently supported by circumstantial facts – it had to point this out to the claimant. Only by failing to do so, it violated the applicant’s right to be heard.


The decision is important because of the (completely incidental) clarification that the Higher Regional Court was (of course) allowed to base its conviction solely on the hearing of the claimant. According to the Federal Supreme Court, there was only reason to hear the witnesses (named as the main evidence) when the Higher Regional Court did not want to/could not base its conviction solely on the content of the hearing of the parties.

This may sound surprising, but it is a mandatory consequence of the free assessment of evidence in § 286 (1) ZPO, according to which the court must form its conviction based on the “entire content of the negotiations and the result of evidence assessment”. And the “content of the hearings” in the aforementioned sense essentially includes the content of a party hearing.