In the next case,72 I should be inclined to agree that one should not carry the logical deduction from a concept so far as to arrive at the utterly unsatisfactory conclusion that the purchaser of a house is obliged to tear it down because his grantor had built across the boundary line of the lot into the adjoining lot which also belonged to him. It would seem that this is a case for applying the section of the Code,73 which authorizes the tender of a money rent in such cases.
Next, with regard to the "replica compensationis" I agree that such a plea should be admitted.74 It would seem obvious to any unprejudiced person that where action is brought for a part of a larger demand, the defendant cannot object to having any offset on his part counted against the portion of the demand not sued for. Otherwise plaintiff would have to dismiss his action or suffer judgment, and then begin a new action for the whole claim, including the part about which there is no dispute. That is surely nothing but an abuse of process, which the court should prevent, for the law must be held to be against and not in favor of abuses.
In the case where the keeper of an animal was sued for injuries caused by a horse to a person whom he had allowed to ride with him by way of accommodation75 I agree with Fuchs that the Supreme Court ought to have ruled against the plaintiff. This is on the ground that obviously he would himself have thought the claim inequitable and preposterous if he had been in the shoes of the defendant. The so-called supplementing of the lacking intention of the legislator by the court76 is based purely on fiction, while what really should have taken place here was to have the sense of justice of the court decide. In a case like this, one can hardly say that the facts were taken into consideration.
71 BGB Sec. 628.
72 Cited in JW, 1907, p. 301; "R&W" pp. 54-59.
73 BGB Sec. 912.
74 RGZ 66, no. 62, p. 266; "R&W" pp. 61, 81, 82.
75 RGZ 65, no. 75; "R&W" p. 67.