(1) A petition may be filed for a decision to be issued by the court against the decisions taken by the judge correspondingly delegated or requested, or against those taken by the records clerk of the court registry, within a statutory period of two (2) weeks (reminder). The reminder is to be filed in writing or is to be recorded with the registry for the files of the court. Section 569 (1) first and second sentences, subsection (2) and sections 570 and 572 shall apply mutatis mutandis.
(2) A complaint subject to a time limit may be lodged against the decision of the court delivered on the reminder in the proceedings before the court of first instance.
(3) The rule set out in subsection (1) shall also apply to the higher regional courts (Oberlandesgerichte, OLG) and the Federal Court of Justice (Bundesgerichtshof, BGH).
Title 2
Complaint on points of law
Section 574
Complaint on points of law; cross appeal under a complaint on points of law
(1) A complaint on points of law is an available remedy against a court order if:
1. This has been expressly determined in the law; or
2. The court hearing the complaint, the court of appeal, or the higher regional court (Oberlandesgericht, OLG) has granted leave to do so in its order in the proceedings before the court of first instance.
Section 542 (2) shall apply mutatis mutandis.
(2) In the cases provided for by subsection (1) number 1, the complaint on points of law shall be admissible only if:
1. The legal matter is of fundamental significance; or
2. The further development of the law or the interests in ensuring uniform adjudication requires a decision to be taken by the court hearing the complaint on points of law.
(3) In the cases provided for by subsection (1) number 2, leave to file a complaint on points of law shall be granted where the prerequisites of subsection (2) have been met. The court hearing the complaint on points of law shall be bound by such leave granted.
(4) The respondent of the complaint on points of law may join the complaint on points of law within a statutory period of one (1) month following service of the brief setting out the reasoning for the complaint on points of law by submitting the notice of cross appeal under a complaint on points of law with the court hearing the complaint on points of law, and may do so also in those cases in which it has waived a complaint on points of law, in which the period within which such a complaint on points of law must be filed has lapsed or in which no leave has been granted to file a complaint on points of law. The reasoning for filing a cross appeal under a complaint is to be provided in the notice of cross appeal. The joinder shall cease to be effective where the complaint on points of law is retracted or overruled as inadmissible.
Section 575
Time limit, formal requirements, and reasoning of the complaint on points of law
(1) The complaint on points of law is to be filed within a statutory period of one (1) month following service of the order by submitting a notice on appeal under a complaint with the court hearing the complaint on points of law. The notice or brief regarding the complaint on points of law must include:
1. The designation of the decision against which the complaint on points of law is directed, and
2. The declaration that a complaint on points of law was filed against this decision.
An execution or certified copy of the contested decision is to be enclosed with the notice or brief regarding the complaint on points of law.
(2) Unless the notice regarding the complaint on points of law sets out its reasons, the grounds for filing the complaint on points of law are to be provided within a period of one (1) month. The period shall begin running upon service of the contested decision. Section 551 (2) fifth and sixth sentences hereof shall apply mutatis mutandis.
(3) The reasoning of the complaint on points of law must include:
1. The declaration as to the extent to which the decision of the court hearing the complaint or of the court of appeal is contested and its reversal is petitioned (petitions under the complaint on points of law);
2. In the cases provided for by section 574 (1) number 1, a presentation of the prerequisites for leave to be granted as set out in section 574 (2);
3. The grounds for the complaint on points of law, these being:
a) The specific designation of the circumstances from which the violation of the law is apparent;
b) Insofar as the complaint on points of law is based on the allegation that the law was violated with reference to the proceedings: the designation of the facts that reflect this irregularity.
(4) The general regulations governing preparatory written pleadings are to be applied also to the notice regarding the complaint on points of law and the brief setting out the reasoning for the complaint. The notice regarding the complaint on points of law and the brief setting out the reasoning for the complaint are to be served on the opponent party.
(5) Sections 541 and 570 subsections (1) and (3) shall apply mutatis mutandis.
Section 576
Grounds for filing the complaint on points of law
(1) The complaint on points of law may only be based on the fact that the decision is based on a violation of federal law or of a rule the territorial scope of which extends beyond the judicial district of a higher regional court (Oberlandesgericht, OLG).
(2) The complaint on points of law may not be based on the fact that the court of first instance was wrong in assuming that it had or did not have jurisdiction.
(3) Sections 546, 547, 556 and 560 shall apply mutatis mutandis.
Section 577
Review of the complaint on points of law and decision
(1) The court hearing the complaint on points of law is to review ex officio whether the complaint on points of law as such is an available remedy and whether or not it has been filed in keeping with statutory requirements as to form and time and whether reasoning was provided. Should one of these requirements not have been met, the complaint on points of law is to be overruled as inadmissible.
(2) Solely the petitions filed by the parties shall be subject to review by the court hearing the complaint on points of law. The court hearing the complaint on points of law is not bound to the grounds being asserted in the complaint on points of law. The decision contested in the proceedings may only be reviewed for irregularities in the proceedings that are not to be taken into account ex officio wherever such irregularities have been objected to pursuant to section 575 (3) and section 574 (4), second sentence, hereof. Section 559 shall apply mutatis mutandis.
(3) In cases in which the reasoning provided for the contested decision does indicate that the law has been violated, but the decision itself appears to be correct based on other grounds, leave to file a complaint on points of law is to be denied.
(4) Where the complaint on points of law is deemed justified, the contested decision is to be reversed and the matter is to be referred back for a new decision to be taken. Section 562 (2) shall apply mutatis mutandis. The matter may be referred to another formation of the court that has delivered the contested decision. The court to which the matter is referred is to base its decision on the legal assessment on which the reversal of the judgment is based.
(5) The court hearing the complaint on points of law is to decide on the matter as such if the decision is reversed only for a violation of the law, in application of the law to the situation of fact as established, and if in light of said situation the matter is ready for the final decision to be taken. Section 563 (4) shall apply mutatis mutandis.
(6) The decision as to the complaint on points of law shall be delivered by court order. Section 564 shall apply mutatis mutandis. The requirement to provide reasoning may be forgone in all other regards if this would not be suited to contribute to clearing up fundamental legal issues, to the further development of the law, or to ensuring uniform adjudication.
Book 4
Reopening of proceedings
Section 578
Types of reopening proceedings
(1) Proceedings terminated by a final judgment that has become res judicata may be reopened by an action for annulment and by an action for retrial of the case.
(2) Where both actions are brought by one and the same party, or by different parties, the hearing and decision as to the action for retrial of the case is to be suspended until the decision on the action for annulment has become final and binding.
Section 579
Action for annulment
(1) An action for annulment may be brought:
1. Where the composition of the court of decision was not compliant with the relevant provisions;
2. Where a judge was involved in the decision who, by law, was prohibited from holding judicial office, unless this impediment had been asserted by a motion to recuse a judge or by filing appellate remedies without meeting with success;
3. Where a judge was involved in the decision although he had been recused for fear of bias and the motion to so recuse him had been declared justified;
4. Where a party to the proceedings had not been represented in accordance with the stipulations of the law, unless it had expressly or tacitly approved the litigation.
(2) No complaint may be filed in the cases set out under numbers 1 and 3 if it was possible to enforce such annulment by appellate remedies.
Section 580
Action for retrial of the case
An action for retrial of the case may be brought:
1. Where the opponent, by swearing an oath regarding his testimony, on which latter the judgment had been based, has intentionally or negligently committed perjury;
2. Where a record or document on which the judgment was based had been prepared based on misrepresentations of fact or had been falsified;
3. Where, in a testimony or report on which the judgment was based, the witness or experts violated their obligation to tell the truth, such violation being liable to prosecution;
4. Where the judgment was obtained by the representative of the party or its opponent or the opponent’s representative by a criminal offence committed in connection with the legal dispute;
5. Where a judge contributed to the judgment who, in connection with the legal dispute, violated his official duties vis-à-vis the party, such violation being liable to prosecution;
6. Where judgment by a court of general jurisdiction, by a former special court, or by an administrative court, on which the judgment had been based, is reversed by another judgment that has entered into force;
7. Where the party
a) Finds, or is put in the position to avail itself of, a judgment that was handed down in the same matter and that has become final and binding earlier, or where it
b) Finds, or is put in the position to avail itself of, another record or document that would have resulted in a decision more favourable to that party’s interests;
8. Where the European Court of Human Rights has established that the European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols have been violated, and where the judgment is based on this violation.
Section 581
Special prerequisites to be met by an action for retrial of the case
(1) In the cases set out in the above section in numbers 1 to 5, an action for retrial of the case may be brought only if a final and binding conviction has been issued as a result of the criminal offence, or if it is not possible to initiate or implement criminal proceedings for other reasons than the lack of evidence.
(2) Evidence of the facts justifying the action for retrial of the case cannot be provided by examination of a party.
Section 582
Auxiliary nature of an action for retrial of the case
An action for retrial of the case may admissibly be brought only if the party, through no fault of its own, was unable to assert the cause for retrial of the case in the earlier proceedings, in particular by filing a protest or an appeal, or by joining an appeal.
Section 583
Prior decisions
The actions for annulment or retrial may assert causes for rescission that affect a decision delivered by the court of the same or lower instance prior to the judgment being contested, provided that the contested judgment is based on this decision.
Section 584
Exclusive jurisdiction for actions for annulment and actions for retrial of the case
(1) For these actions, exclusive jurisdiction shall lie with: the court entering the judgment in the proceedings before the court of first instance; the court of appeal if the judgment contested, or even only one of several judgments contested, was delivered by the court of appeal, or if a judgment delivered by a court hearing the appeal on points of law is contested based on the stipulations of section 580 numbers 1 to 3, 6, and 7; the court hearing the appeal on points of law if a judgment delivered by a court hearing the appeal on points of law is contested based on the stipulations of sections 579, 580 numbers 4 and 5.
(2) Where the actions are directed against a writ of execution, they shall be brought exclusively with the court that would have been the forum for the litigation as such.
Section 585
General procedural rules
Unless otherwise provided for by the present Code, the general regulations shall apply mutatis mutandis to bringing proceedings in the court and to the further proceedings.
Section 586
Period for filing an action
(1) The actions are to be filed prior to expiry of the statutory period of one (1) month.
(2) The period shall commence running on that day on which the party has become aware of the cause for rescission, but not prior to the judgment having become final and binding. Once five (5) years have lapsed, counting from the date on which the judgment has become res judicata, actions shall no longer be an available remedy.
(3) The stipulations of the above subsection are not to be applied to an action for annulment due to lack of representation; the period for bringing an action shall commence on the day on which the judgment has been served on the party and, where the party lacks the capacity to sue and be sued, on which it has been served on its legal representative.
(4) The rule set out in subsection (2), second sentence, is not to be applied to any actions for retrial of a case as provided for by section 580 number 8.
Section 587
Statement of claim
The complaint must set out the reference number and designation of the judgment against which the action for annulment or action for retrial of the case is directed, as well as the declaration as to which of these actions are being brought.
Section 588
Content of the statement of claim
(1) As a preparatory written pleading, the complaint is to set out:
1. The designation of the cause for rescission;
2. The evidence for the facts forming the cause and showing that the statutory period has been adhered to;
3. The declaration as to the extent to which the remediation of the contested judgment is being sought, and which other decision in the main action is being petitioned.
(2) The original versions or copies of the records or documents on which an action for retrial of the case is based are to be enclosed with the written pleading by which the action is brought. Should the records or documents not be at hand to the plaintiff, he is to declare which petition he intends to file for the procurement of such records or documents.
Section 589
Review of admissibility
(1) The court is to review ex officio whether the complaint is admissible as such and whether it has been brought in keeping with statutory requirements as to form and time. Should one of these requirements not have been met, the complaint shall be overruled as inadmissible.
(2) The facts showing that the complaint is being brought prior to the statutory period having lapsed are to be demonstrated to the satisfaction of the court.
Section 590
New hearing
(1) Insofar as it is affected by the cause for rescission, the main action shall be heard once again.
(2) The court may direct that the cause for reopening the proceedings, and the admissibility of so reopening them, be heard and decided on prior to the hearing regarding the main action. In such event, the hearing regarding the main action is to be deemed a continuation of the hearing regarding the cause for the reopening of the proceedings and the admissibility of so reopening them.
(3) The court hearing the appeal on points of law that is responsible for the actions filed is to deal with and conclude the hearing at which the cause for reopening the proceedings and the admissibility of so reopening them are addressed, and shall do so also in those cases in which such conclusion of the hearing depends on the determination and legal appraisal of disputed facts.
Section 591
Appellate remedies
Appellate remedies are admissible insofar as they may at all be filed against the decisions delivered by the courts dealing with the actions.
Book 5
Proceedings on claims arising from a deed, in which solely documentary evidence is submitted, and proceedings on claims arising from a bill of exchange
Section 592
Admissibility
A claim that is brought regarding the payment of a specific amount of money, or the performance of a determined amount of other fungible things that in business dealings are customarily specified by number, measure or weight, or the performance of securities, may be asserted in proceedings in which plaintiffs rely entirely on documentary evidence, provided that the entirety of all facts required to justify the claim can be proven by records or documents. A claim arising from a mortgage, a charge on land, an annuity charge on land, or a maritime mortgage shall be deemed to be a claim that is brought regarding the payment of an amount of money.
Section 593
Content of the statement of claim; records and documents
(1) The statement of claim must declare that the action is being brought in proceedings in which plaintiffs rely entirely on documentary evidence.
(2) Copies of the records or documents are to be enclosed with the statement of claim or a preparatory written pleading. In the latter case, the period lapsing between the service of the written pleading and the hearing scheduled for oral argument must be equal to the time for entering an appearance.
Section 594
(repealed)
Section 595
No countercharges; evidence
(1) No countercharges may admissibly be brought.
(2) Solely records or documents and the petition for examination of a party shall be admissible as evidence regarding the authenticity or falsity of a record or document, as well as other facts besides those mentioned in section 592.
(3) Documentary evidence may be provided only by producing the records or documents.
Section 596
Desisting from proceedings in which plaintiffs rely entirely on documentary evidence
Without this requiring the defendant’s consent, the plaintiff may desist, until the close of the hearing for oral argument, from pursuing proceedings in which plaintiffs rely entirely on documentary evidence, doing so such that the legal dispute continues to be pending before the courts of general jurisdiction.
Section 597
Dismissal of the action
(1) Insofar as the claim being asserted in the action appears to be without justification, either in and of itself or as the result of an objection lodged by the defendant, the plaintiff’s claim is to be dismissed.
(2) Wherever proceedings in which plaintiffs rely entirely on documentary evidence are not an available remedy, and in particular where evidence has not been provided in line with the plaintiff’s obligation to submit the evidence admissible in proceedings in which plaintiffs rely entirely on documentary evidence, or where such documentary evidence has not been provided completely, the action shall be dismissed as not being an available remedy in the type of proceedings selected, even if the defendant has failed to make an appearance in the hearing for oral argument or even if the defendant has opposed the complaint based merely on objections that are without justification in legal terms or that are not an available remedy in proceedings in which plaintiffs rely entirely on documentary evidence.
Section 598
Refusal to admit objections
Objections lodged by the defendant are to be dismissed as not being an available remedy in proceedings in which plaintiffs rely entirely on documentary evidence should the defendant have failed to provide the evidence in keeping with its obligations, by submitting the evidence admissible in proceedings in which plaintiffs rely entirely on documentary evidence, or where such documentary evidence has not been provided completely.
Section 599
Judgment subject to a reservation of rights
(1) The defendant opposing the claim being brought is to be granted the right to exercise his rights in all cases in which sentence is passed upon him.
(2) If the judgment does not set out a reservation of rights, an amendment of the judgment pursuant to the stipulations of section 321 may be applied for.
(3) The judgment delivered subject to a reservation of rights is to be regarded as a final judgment for the purposes of appellate remedies and compulsory enforcement.
Section 600
Subsequent proceedings
(1) Where the defendant is granted the right to exercise his rights, the legal dispute shall remain pending before the courts of general jurisdiction.
(2) To the extent the plaintiff’s claim proves to have been unfounded in these proceedings, the stipulations of section 302 (4) second to fourth sentences hereof shall apply.
(3) Should a party fail to make an appearance in these proceedings, the rules regarding default judgments shall apply mutatis mutandis.
Section 601
(repealed)
Section 602
Proceedings on claims arising from a bill of exchange
If claims are asserted, in proceedings in which plaintiffs rely entirely on documentary evidence, that are based on bills of exchange in the sense as defined by the Act on Bills of Exchange and Promissory Notes (Wechselgesetz) (proceedings on claims arising from a bill of exchange), the special rules set out hereinbelow are to be applied.
Section 603
Venue
(1) An action arising from a bill of exchange may be filed both with the court of the place of payment and with the court in the jurisdiction of which the defendant has his general venue.
(2) Should several parties liable on a bill of exchange be jointly sued, any court shall have jurisdiction, besides the court of the place of payment, in the jurisdiction of which one of the defendants has his general venue.
Section 604
Content of the statement of claim; summons period
(1) The statement of claim must set out the declaration that the complaint is being filed in proceedings on claims arising from a bill of exchange.
(2) The period indicated in the summons as the period lapsing between service of same and the date of the hearing (summons periods) shall amount to at least twenty-four (24) hours where the summons is served at the location at which the court hearing the case has its seat. In proceedings in which the parties must be represented by counsel, the summons period shall amount to at least three (3) days if the summons is served at a different location situate in the judicial district of the court hearing the case, or of which a part is located in the court’s judicial district.
(3) Before the courts of higher instance, the summons period shall amount to at least twenty-four (24) hours if the notice or brief on appeal, or the notice or brief on appeal on points of law, or the summons is served at the location at which the court of higher instance has its seat. Where service is effected at another location that is situate, as a whole or in part, in the district of the regional court (Landgericht) in which the court of higher instance has its seat, the summons period shall amount to at least three (3) days; it shall amount to at least one (1) week if service is effected elsewhere in Germany.
Section 605
Regulations governing the submission of evidence
(1) Unless protest must be lodged in due time in order to preserve the claim under the bill of exchange, the petition for examination of a party is admissible as evidence regarding the production of a bill of exchange.
(2) For an ancillary claim to be considered, it suffices for it to have been demonstrated to the satisfaction of the court.
Section 605a
Proceedings on claims asserted concerning the payment of a cheque
Where, in proceedings in which plaintiffs rely entirely on documentary evidence, claims are asserted that are based on cheques in the sense as defined by the Law on Cheques (Scheckgesetz) (proceedings on claims asserted concerning the payment of a cheque), sections 602 to 605 shall apply mutatis mutandis.
Sections 606 to 687
(repealed)
Book 7
Summary proceedings for a payment order
Section 688
Admissibility
(1) Upon corresponding application being made by the claimant regarding a claim concerning the payment of a specific amount of money in Euros, a payment order is to be issued.
(2) No summary proceedings for a payment order may be brought:
1. For claims that an entrepreneur has under an agreement pursuant to sections 491 to 509 of the Civil Code (Bürgerliches Gesetzbuch, BGB), if the effective annual rate of interest to be provided for in accordance with section 492 (2) of the Civil Code is in excess, by more than twelve (12) percentage points, of the base rate of interest, pursuant to section 247 of the Civil Code, applicable at the time the agreement is concluded;
2. Where the assertion of the claim is dependent on consideration, performance of which is as yet outstanding;
3. Where the payment order would have to be served by publication of a notice.
(3) Should the payment order have to be served abroad, the summary proceedings for a payment order may be brought only to the extent provided for by the Act on the Recognition and Execution of Judgments by Way of Enforcement (Anerkennungs- and Vollstreckungsausführungsgesetz, AVAG) of 19 February 2001 (published in Federal Law Gazette (Bundesgesetzblatt, BGBl) I page 288).
(4) The stipulations of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (Official Journal L 399 page 1) shall remain unaffected hereby. Sections 1087 to 1096 shall apply regarding its implementation.
Section 689
Jurisdiction; automatic processing
(1) The summary proceedings for a payment order are implemented by the local courts (Amtsgerichte). They may admissibly be implemented using automatic processing systems. Where this processing method is used, petitions received are to have been dealt with at the latest on the working day following the day of their receipt. The records may be kept as electronic files (section 298a).
(2) That local court (Amtsgericht, AG) shall have exclusive jurisdiction with which the claimant has his general venue. Should claimants have no general venue in Germany, the local court of Wedding in Berlin shall have exclusive jurisdiction. The first and second sentences hereof shall also apply if other rules determine another exclusive place of jurisdiction.
(3) Should this serve the prompter and more effective processing of such orders, the Land governments are authorised to assign summary proceedings for a payment order to a local court acting for the districts of several local courts, doing so by statutory instrument. The assignment may be limited to those summary proceedings for a payment order that are processed automatically. The Land governments may confer the authorisation by statutory instrument upon the Land departments of justice. Several Länder may agree on the jurisdiction of a local court across the boundaries of their respective territories.
Section 690
Petition for a payment order
(1) The petition must be for the issuance of a payment order and must set out:
1. The designation of the parties, their legal representatives, and their attorneys of record;
2. The designation of the court with which the petition was filed;
3. The designation of the claim, with the performance demanded being specified exactly; the principal claims and ancillary claims are to be designated separately and individually, claims under agreements pursuant to sections 491 to 509 of the Civil Code (Bürgerliches Gesetzbuch, BGB) are to be designated also by citing the date on which they were concluded and the effective annual rate of interest to be provided for in accordance with section 492 (2) of the Civil Code;
4. The declaration that the claim is not dependent on consideration, or that such consideration has been provided;
5. The designation of the court having jurisdiction for legal proceedings determining whether or not a claim is justified.
(2) The petition must be signed by hand.
(3) The petition may be transmitted in a format that is merely machine-readable if the court deems this format to be suited for its automatic processing systems. Where the petition is filed by an attorney or a person registered pursuant to section 10 (1), first sentence, number 1 of the Legal Services Act (Rechtsdienstleistungsgesetz, RDG), exclusively this form of filing a petition shall be admissible. The petition need not be signed by hand if it is otherwise warranted that the petition is not being transmitted without this having been intended by the claimant.
Section 691
Dismissal of the petition for a payment order
(1) The petition for a payment order shall be dismissed:
1. If it does not comply with the stipulations of sections 688, 689, 690, 703c (2);
2. If the payment order cannot be issued for reasons given in only a part of the claim.
Prior to such dismissal, the claimant is to be heard.
(2) If service of the payment order is to be made in order to comply with a deadline, or to have the period of limitations begin anew, or to have it extended pursuant to section 204 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the receipt or the filing of the corresponding petition for issuance of the payment order shall have this effect provided an action is brought within one (1) month of the day on which the dismissal of the petition has been served and this is served in the near future.
(3) A complaint subject to a time limit may be lodged against the dismissal if the petition was transmitted in a form that is merely machine-readable and was dismissed, with the court citing as its reason for the dismissal that it did not deem this format to be suited for its automatic processing systems. In all other regards, decisions delivered pursuant to subsection (1) are incontestable.
Section 692
Payment order
(1) The payment order shall set out:
1. The requirements of the petition as designated in section 690 (1) numbers 1 to 5;
2. The notice as to the court not having reviewed whether or not the claimant is entitled to the claim being enforced;
3. The demand to settle the account for the debt claimed, along with the interest demanded thereon and the amount of the costs designated, and to do so within two (2) weeks of the payment order having been served, insofar as the claim being asserted is deemed justified, or to communicate to the court whether the claim being asserted is opposed and in which scope this is being done;
4. The notice that a writ of execution may be issued that corresponds to the payment order, based on which the claimant may pursue compulsory enforcement of his claim should the respondent under the claim not have lodged an opposition prior to the time limit having lapsed;
5. In the event that forms have been introduced: the notice that any opposition shall be lodged using a form of the type enclosed, which is available from any local court (Amtsgericht, AG) and can be completed there;
6. In the event of an opposition being lodged: advance notice specifying the court that is assigned to the matter, with the note that this court reserves the right to review whether or not it has jurisdiction.
(2) A corresponding stamp placed on the document or an electronic signature shall be deemed compliant with this rule instead of a signature by hand.
Section 693
Service of the payment order
(1) The payment order is served on the respondent under the claim.
(2) The court registry shall inform the claimant of the fact that the payment order has been served.
Section 694
Lodging an opposition against the payment order
(1) The respondent under the claim may lodge an opposition in writing against a claim, or a part thereof, with the court that has delivered the payment order for as long as no writ of execution has been ordered.
(2) An opposition lodged late shall be treated as a protest. This shall be communicated to the respondent under the claim who has lodged the opposition.
Section 695
Notice of opposition; copies
The court is to inform the claimant of the opposition and of the point in time at which it was lodged. Where the summary proceedings for a payment order are not processed automatically, the respondent under the claim shall submit the required number of copies along with the opposition.
Section 696
Proceedings upon an opposition having been lodged
(1) If an opposition is lodged in due time, and if a party applies for legal proceedings to be implemented that are to determine whether or not a claim is justified, the court that delivered the payment order will assign the legal dispute ex officio to the court that has been designated in the payment order pursuant to section 692 (1) number 1, provided that the parties to the dispute concur in requesting that the matter be so assigned to a different court. The petition may be included in the petition for issuance of the payment order. The assignment of the matter to a different court shall be communicated to the parties; it is not contestable. Upon the court files being received by the court to which the legal dispute has been assigned, the legal dispute shall be deemed to be pending with that court. Section 281 (3), first sentence, hereof shall apply mutatis mutandis.
(2) Should the summary proceedings for a payment order have been processed automatically, a hard-copy printout of the files prepared automatically shall take the stead of the files unless the files are transmitted electronically. The rules regarding the evidentiary value of public records and documents shall apply mutatis mutandis to this printout. Section 298 shall not apply.
(3) The dispute shall be deemed to have become pending upon the payment order having been served, provided that the dispute was assigned to another court in due time after the opposition was lodged.
(4) The petition for the implementation of the legal proceedings determining whether or not a claim is justified may be withdrawn until the time at which the respondent is to be first heard on the merits of the case. Such withdrawal may be recorded with the registry for the files of the court. Upon the petition so being withdrawn, the dispute is to be regarded as not being pending.
(5) The court to which the legal dispute has been assigned is not bound thereby in terms of its jurisdiction.
Section 697
Initiation of litigation
(1) The court registry of the court to which the dispute was transferred is to direct without undue delay that the claimant provide the reasons on which he is basing his claim within two (2) weeks in a form corresponding to the statement of claim. Section 270 second sentence shall apply mutatis mutandis.
(2) Upon receipt of the brief substantiating the claim, the ensuing procedure shall correspond to that pursued upon receipt of an action. A time limit may also be set for the submission of a written statement of defence in the preliminary proceedings conducted in writing pursuant to section 276, such period commencing on the date on which the brief substantiating the claim is served.
(3) Where the brief substantiating the claim is not received by the court in due time, and until it is received by the court, a hearing for oral argument shall be scheduled only upon a corresponding application being made by the respondent under the claim. In determining the date of a hearing by the court, the presiding judge shall set a time limit within which the claimant is to substantiate his claim; section 296 subsections (1) and (4) shall apply mutatis mutandis.
(4) The respondent under the claim may retract his opposition until the time at which the respondent is to be first heard on the merits of the case, but may not do so after a default judgment has been delivered against him. The fact that the opposition has been retracted may be recorded with the registry for the files of the court.
(5) In creating a judgment in the abridged form pursuant to section 313b (2), section 317 (5), the payment order may take the stead of the statement of claim. If the summary proceedings for a payment order have been processed automatically, the statement of claim shall be replaced by the hard-copy printout of the file.
Section 698
Transfer of the proceedings within the same court
The rules governing the transfer of proceedings shall apply mutatis mutandis in the event that the summary proceedings for a payment order and the legal proceedings determining whether or not a claim is justified are being pursued within one and the same court.
Section 699
Writ of execution
(1) Upon a corresponding petition being filed, the court shall deliver a writ of execution based on the payment order unless the respondent under the claim has lodged an opposition in due time. The petition may not be filed prior to expiry of the period for lodging an opposition; it is to set out the declaration as to whether or not any payments have been made as a result of the payment order and if so, which these were; section 690 (3) first and third sentences shall apply mutatis mutandis. Should the legal dispute have already been transferred to another court, this court shall deliver the writ of execution.
(2) Insofar as the summary proceedings for a payment order are not processed automatically, the writ of execution may be set out on the payment order.
(3) The writ of execution shall include the costs of the proceedings incurred thus far. The claimant needs to compute the costs only if the summary proceedings for a payment order are not processed automatically; in all other cases the information required for automatic processing shall suffice.
(4) The writ of execution shall be served ex officio on the respondent under the claim unless the claimant has applied that it be transmitted to him for service on the respondent in keeping with the principle of party initiative in proceedings. In these cases, the writ of execution is transmitted to the claimant for him to perform service, and the court registry shall not effect such service. Should the court responsible for the summary proceedings for a payment order permit service to be effected by publication, the notification pursuant to section 186 (2) second and third sentences shall be hung on the court’s bulletin board or published in the electronic information system of the court designated in the payment order pursuant to section 692 (1) number 1.
(5) The instruction pursuant to section 232 shall be communicated to the respondent in writing together with the writ of execution when the same is served on the respondent.
Section 700
Protest against the writ of execution
(1) The writ of execution is equivalent to a default judgment declared provisionally enforceable.
(2) The dispute is deemed to have become pending upon service of the payment order.
(3) Should a protest be filed, the court delivering the writ of execution shall transfer the legal dispute ex officio to that court that has been designated in the payment order pursuant to section 692 (1) number 1, and where the parties to the dispute concur in requesting the transfer to another court, it shall transfer the legal dispute to that court. Section 696 (1) third to fifth sentences, subsections (2) and (5), section 697 subsections (1) and (4), section 698 shall apply mutatis mutandis. Section 340 (3) shall not be applied.
(4) Upon receipt of the brief substantiating the claim, the ensuing procedure shall correspond to that pursued upon receipt of an action. Once the brief substantiating the claim is received, the ensuing procedure shall be as in the case of a statement of claim being received, unless the protest is overruled as being inadmissible. Section 276 (1) first and third sentences and subsection (2) shall not be applied.
(5) Should the brief substantiating the claim not be received within the period set by the court registry, and should the protest not be overruled as being inadmissible, the presiding judge shall schedule a hearing without undue delay; section 697 (3), second sentence, shall apply mutatis mutandis.
(6) Pursuant to section 345, the protest may be overruled only if the prerequisites for a default judgment to be handed down as set out in section 331 subsections (1) and (2) first clause of the sentence have been met; insofar as these prerequisites have not been met, the writ of execution shall be repealed.
Section 701
Payment order ceases to have effect
Where no opposition has been lodged, and where the claimant has not petitioned a writ of execution to be issued within a period of six (6) months beginning on the day the payment order is served, the payment order shall cease to be effective. The same shall apply to the case in which a petition for the writ of execution has been filed in due time, but the petition has been dismissed.
Section 702
Form of petitions and declarations
(1) In summary proceedings for a payment order, the petitions and declarations may be filed with the records clerk of the court registry. Insofar as forms have been introduced, they shall be completed; the records clerk will note that he has recorded the petition or the declaration, providing the name of the court and the date on which he did so. If forms have not been introduced, it is not necessary to prepare a record of a petition for the issuance of a payment order or of a writ of execution with the court responsible for the summary proceedings for a payment order.
(2) The petition for issuance of a payment order or of a writ of execution is not communicated to the respondent under the claim.
Section 703
No proof of the power of attorney
It is not necessary to provide proof of a power of attorney having been granted in summary proceedings for a payment order. Anyone filing a petition or a legal remedy as an attorney-in-fact is to assure the court that he has been duly authorised.
Section 703a
Summary proceedings for a payment order under a deed, a bill of exchange, or a cheque
(1) Should the petition by the claimant seek to obtain the issuance of a court order to pay debts under a deed, a bill of exchange, or a cheque, the payment order is designated as a court order to pay debts under a deed, a bill of exchange, or a cheque.
(2) The following special rules shall apply to summary proceedings for a payment order under a deed, a bill of exchange, or a cheque:
1. The designation as court order to pay debts under a deed, a bill of exchange or a cheque shall have the effect of the dispute becoming pending, if an opposition is lodged in due time, in the proceedings on claims arising from a deed, from a bill of exchange, or on claims asserted concerning the payment of a cheque;
2. The records or documents shall be designated in the petition for issuance of the payment order and in the payment order; where the matter is to be transferred to the court hearing the dispute, the original versions or copies of the records or documents must be enclosed with the brief substantiating the claim;
3. In summary proceedings for a payment order, the question of whether or not the type of proceedings is an available remedy is not to be reviewed;
4. If the opposition is limited to the petition that the defendant be granted the right to exercise his rights, the writ of execution is to be delivered subject to this reservation. The rule set out in section 600 shall apply mutatis mutandis to the further procedure.
Section 703b
Special regulations for automatic processing
(1) In the event of automatic processing systems being used, orders, rulings, execution copies, and court certificates of enforceability will be furnished with the court seal; no signature is required.
(2) The Federal Minister of Justice is authorised to provide for the course of proceedings such provision being subject to approval by the Bundesrat and being made by statutory instrument, insofar as this is required to ensure uniform automatic processing of the summary proceedings for a payment order (progress schedule for the proceedings).
Section 703c
Forms; introduction of automatic processing
(1) The Federal Minister of Justice is authorised to introduce forms in the interests of simplifying the summary proceedings for a payment order and in order to protect the party being laid claim to, such forms being subject to approval by the Bundesrat and being made by statutory instrument. Different forms may be introduced for:
1. Summary proceedings for a payment order performed by courts using automatic processing systems;
2. Summary proceedings for a payment order performed by courts that do not use automatic processing systems;
3. Summary proceedings for a payment order in which the payment order is to be served abroad;
4. Summary proceedings for a payment order in which the payment order is to be served in accordance with Article 32 of the Supplementary Agreement amending the NATO Status of Forces Agreement of 3 August 1959 (published in the Federal Law Gazette (Bundesgesetzblatt, BGBl.) 1961 II page 1183, citation on page 1218).
(2) Insofar as forms have been introduced pursuant to subsection (1) for petitions and declarations filed by the parties, the parties to the dispute must use them.
(3) The Land governments shall determine the point in time, by statutory instrument, at which the automatic processing system for the summary proceedings for a payment order is to be introduced at any given local court (Amtsgericht, AG); they may confer the authorisation upon the Land departments of justice by statutory instrument.
Section 703d
Rules where respondents have no general venue in Germany
(1) If the respondent has no general venue in Germany, the special rules set out hereinbelow shall apply.
(2) That local court (Amtsgericht, AG) shall have jurisdiction for the summary proceedings for a payment order that would be the forum for the legal proceedings determining whether or not a claim is justified if the local courts had unlimited competence ratione materiae in the proceedings before the court of first instance. Section 689 (3) shall apply mutatis mutandis.
Book 8
Compulsory enforcement
Chapter 1
General regulations
Section 704
Enforceable final judgments
Compulsory enforcement may be pursued based on final judgments that have become final and binding, or that have been declared provisionally enforceable.
Section 705
Formal legal validity
Judgments shall not attain legal validity prior to expiry of the period determined for the lodgment of the admissible legal remedy or of the admissible protest. The legal validity shall be suspended in all cases in which the legal remedy or the protest is lodged in due time.
Section 706
Certificate as to a judgment having attained legal force and certificate as to the statutory period
(1) Certifications that judgments have become unappealable are to be issued by the registry of the court of first instance based on the court records of the dispute and, for as long as the legal dispute is pending at a higher level of jurisdiction, they are to be issued by the registry of the court of that instance.
(2) To the extent the issuance of the certification depends on no legal remedy having been lodged against the judgment, the registry of the court of first instance shall procure, from the registry of the court having jurisdiction for the legal remedy, a notice in text form (a readable statement that is permanently valid without a signature having been applied) that until the expiry of the statutory period, no notice or brief regarding a legal remedy had been lodged. The registry of the court hearing the appeal on points of law need not communicate that no petition for leave to be granted to file an appeal on points of law pursuant to section 566 has been filed.
Section 707
Temporary stay of compulsory enforcement
(1) If a petition is filed for the restoration of the status quo ante or for proceedings to be reopened, or if an objection as provided for by section 321a is lodged, or if the legal dispute is continued following the pronouncement of a judgment subject to a reservation of rights, the court may direct, upon corresponding application being made, that compulsory enforcement be temporarily stayed, against or without provision of security, or that it be pursued only against the provision of security, and that the enforcement measures are to be revoked against provision of security. Compulsory enforcement may be discontinued without any security being provided only if it is demonstrated to the satisfaction of the court that the debtor is unable to provide security and that the enforcement would entail a disadvantage that it is impossible to compensate or remedy.
(2) The decision is delivered by a court order. The court order is incontestable.
Section 708
Provisionally enforceable judgments delivered without security being provided
The following are to be declared provisionally enforceable without any provision of security:
1. Judgments delivered based on an acknowledgment or a waiver;
2. Default judgments and judgments handed down on the basis of the record as it stands against the party failing to appear at the hearing pursuant to section 331a;
3. Judgments by which the protest was overruled as inadmissible pursuant to section 341;
4. Judgments delivered in proceedings on claims arising from a deed, or from a bill of exchange, or in proceedings on claims asserted concerning the payment of a cheque;
5. Judgments declaring that a judgment subject to a reservation of rights delivered in proceedings on claims arising from a deed, from a bill of exchange or on claims asserted concerning the payment of a cheque is upheld by way of cancelling the reservation;
6. Judgments refusing to issue seizures or injunctions, or judgments repealing them;
7. Judgments delivered in disputes between the lessor and the lessee or sublessee of residential or other spaces, or between the lessee and the sublessee of such spaces regarding permission to use the spaces, the use or vacation of same, the continuation of the lease relationship for residential spaces based on sections 574 to 574b of the Civil Code (Bürgerliches Gesetzbuch, BGB) as well as regarding the retention of objects introduced into the leased spaces by the lessee or sublessee;
8. Judgments meting out an obligation to pay maintenance, annuities for the deprivation of a maintenance claim or annuities for injuries to limb or health, insofar as the obligation refers to the period following the time at which an action was brought in the courts and the last quarter preceding that time;
9. Judgments pursuant to sections 861 and 862 of the Civil Code (Bürgerliches Gesetzbuch, BGB) for the restoration of possession or for the removal or cessation of an interference with possession;
10. Appellate judgments in disputes under property law. Where leave to appeal is denied by a judgment or court order pursuant to section 522 (2), this is to mandate that the judgment is provisionally enforceable without any provision of security;
11. Other judgments in disputes under property law if the matter on which the sentence is handed down is not in excess of 1,250 euros, or if only the decision as to costs is enforceable and enables enforcement in the amount of not more than 1,500 euros.
Section 709
Provisionally enforceable judgments delivered against security
Other judgments are to be declared provisionally enforceable against provision of security, the amount of which is to be determined. Insofar as a monetary claim is to be enforced, it shall be deemed compliant with the present rule if the amount of the security is specified in a determined ratio to the amount to be enforced in the particular case. Where a judgment upholding a default judgment is concerned, it is to stipulate that enforcement efforts under the default judgment may be continued only against provision of security.
Section 710
Exceptions from the provision of security by the creditor
Should the creditor be unable to provide the security pursuant to section 709, or only with great difficulty, the judgment is to be declared provisionally enforceable, upon corresponding application being made, also without any security being provided in those cases in which the suspension of enforcement would entail a disadvantage for the creditor that it is difficult to compensate or to assess, or in which it would entail a disadvantage that would be inequitable for the creditor for any other reason, in particular because he urgently needs the provision of the security for his subsistence or his economic activities.
Section 711
Authorisation to avert enforcement
In the cases provided for by section 708 numbers 4 to 11, the court is to determine that the debtor may avert the enforcement by providing security or by lodgment, unless the creditor provides security prior to enforcement. Section 709 second sentence shall apply mutatis mutandis, but shall apply for the debtor subject to the proviso that the security shall be provided in a certain proportion to the amount to be enforced under the ruling. Section 710 shall apply to the creditor mutatis mutandis.
Section 712
Petition for protection filed by the debtor
(1) Insofar as the enforcement would entail a disadvantage for the debtor that it is impossible to compensate or remedy, the court is to allow him, upon a corresponding petition being filed, to avert enforcement by providing security or by lodgment, without taking account of any security that the creditor may have provided; section 709 second sentence shall apply mutatis mutandis to the cases set out in section 709 first sentence. Where the debtor is not able to do so, the judgment shall not be declared provisionally enforceable, or its enforcement is to be limited to the measures designated in section 720a subsections (1) and (2).
(2) The petition filed by the debtor shall not be complied with if an overriding interest of the creditor contravenes this. In the cases provided for by section 708, the court may direct that the judgment shall be provisionally enforceable only against provision of security.
Section 713
Non-issuance of orders serving the protection of debtors
The orders admissible under sections 711 and 712 in favour of the debtor shall not be issued if there is no doubt that the prerequisites under which a legal remedy might be lodged against judgment are not met.
Section 714
Petitions regarding the preliminary enforceability of the judgment
(1) Petitions pursuant to sections 710, 711 third sentence, and section 712 are to be filed prior to the close of the hearing subsequent to which the judgment is delivered.
(2) The factual prerequisites are to be demonstrated to the satisfaction of the court.
Section 715
Return of the security
(1) The court that has directed the creditor to provide security, or permitted the provision of security, shall direct the return of such security, upon a corresponding petition being filed, if a certification as to the legal validity of the judgment declared provisionally enforceable is presented. Where the security has been provided in the form of a bond, the court shall order the bond to expire.
(2) Section 109 (3) shall apply mutatis mutandis.
Section 716
Amendment of the ruling
Should no decision have been delivered regarding a judgment’s provisional enforceability, the stipulations of section 321 are to be applied to any amendment of the judgment.
Section 717
Effects of a judgment reversing or modifying the original judgment
(1) Upon a judgment being pronounced that reverses or modifies the decision in the main action, or the declaration of enforceability, the judgment shall cease to be provisionally enforceable to the extent to which it is reversed or modified.
(2) If a judgment declared provisionally enforceable is reversed or modified, the plaintiff shall be obligated to compensate the defendant for the damages he has suffered by the judgment being enforced, or by the payments he had to make, or any other actions he had to take in order to avert enforcement. The defendant may assert the claim to compensation of damages in the pending legal dispute; once this claim is asserted and filed, it is to be deemed as having become pending at the time at which the payment was made or other action was taken.
(3) The stipulations of subsection (2) are not to be applied to the appellate judgments designated in section 708 number 10, to the exception of default judgments. Insofar as such a judgment is reversed or modified, the plaintiff is to be sentenced, upon a corresponding petition having been filed by the defendant, to reimburse the latter for the payments made or other actions taken on the basis of that prior judgment. The obligation of the plaintiff to so reimburse the defendant is determined by the rules as to the surrender of the result of any unjust enrichment. Once the petition has been filed, the claim to reimbursement is to be deemed as having become pending at the time at which the payment was made or other action was taken; even where the petition is not filed, the effects tied to the pendency of the matter pursuant to the stipulations under civil law shall occur with the payment being made or other action being taken.
Section 718
Preliminary decision as to provisional enforceability
(1) Upon corresponding application being made, preliminary oral argument is to be submitted in the appellate instance on fact and law regarding the provisional enforceability, and a decision is to be delivered.
(2) The decision delivered as to the provisional enforceability by the appellate instance on fact and law is incontestable.
Section 719
Provisional termination in the case of appellate remedies and protests having been filed
(1) Insofar as a judgment declared provisionally enforceable is protested against or appealed, the stipulations of section 707 shall apply mutatis mutandis. Compulsory enforcement under a default judgment may be terminated only against provision of security unless the default judgment was handed down in a manner not in keeping with the law, or the party failing to comply with procedural rules demonstrates to the satisfaction of the court that it failed to comply with procedural rules through no fault of its own.
(2) If an appeal on points of law is lodged against a judgment declared provisionally enforceable, the court hearing the appeal on points of law shall direct, upon corresponding application being made, that compulsory enforcement is to be temporarily stayed should the enforcement entail a disadvantage that it is impossible to compensate or remedy, unless overriding interests of the creditor should contravene this decision. The parties are to demonstrate to the satisfaction of the court that the factual prerequisites are given.
(3) The decision is delivered by court order.
Section 720
Lodgment in the event enforcement is averted
Where a debtor may avert enforcement by the provision of security or by lodgment pursuant to section 711 first sentence, section 712 (1), first sentence, the lodgment shall comprise attached cash or the proceeds from attached objects.
Section 720a
Precautionary attachment
(1) The creditor may pursue compulsory enforcement under a judgment that is provisionally enforceable against security having been provided and by which the debtor was sentenced to pay cash, without providing security insofar as:
a) Movable property is attached;
b) A debt-securing mortgage or maritime mortgage is entered regarding the immovable property by way of compulsory enforcement.
The creditor may satisfy its claim from the asset so encumbered only upon having provided the security.
(2) Section 930 subsections (2) and (3) shall apply mutatis mutandis to compulsory enforcement against the movable property.
(3) The debtor has the authority to avert compulsory enforcement pursuant to subsection (1) by providing security in the amount of the principal claim for which the creditor may enforce his claim, unless the creditor has previously provided the security demanded of him.
Section 721
Time limit for the vacation of premises
(1) If a decision is delivered as to residential premises having to be vacated, the court may grant a period to the debtor for so clearing them, ex officio or upon a corresponding petition being filed, that is reasonable under the circumstances. The petition is to be filed prior to the close of the hearing upon which the judgment is handed down. Should the petition have been overlooked in the decision, section 321 shall apply; until the decision is delivered, the court may temporarily stay compulsory enforcement for the claim to vacation of premises upon corresponding application being made.
(2) Where a decision is delivered as to premises having to be vacated in future and no time limit for such vacation has yet been stipulated, the debtor may be granted a period for clearing the premises that is reasonable under the circumstances, provided that he files the corresponding petition at least two (2) weeks prior to the date on which, according to the judgment, the premises are to be vacated. Sections 233 to 238 shall apply mutatis mutandis.
(3) Upon corresponding application being made, the time limit for vacating the premises may be extended or shortened. The petition for an extension of the period is to be filed at the latest two (2) weeks prior to the expiry of the time limit set for the vacation of the premises. Sections 233 to 238 shall apply mutatis mutandis.
(4) The court of first instance shall rule on petitions filed pursuant to subsections (2) or (3); as long as the matter is pending before the appellate instance on fact and law, the court of appeal is to so rule. The decision is delivered by a court order. Prior to the decision being taken, the opponent is to be heard. The court is authorised to deliver the orders designated in section 732 (2).
(5) The period set for the vacation of premises may not amount to longer than one (1) year in total. This period of one (1) year shall be calculated from the date on which the judgment attains legal validity or, in cases in which the premises are to be vacated at a later date pursuant to a judgment for future vacation, from that date onwards.
(6) A complaint subject to a time limit may be filed:
1. Against judgments deciding on the vacation of residential premises where the appellate remedies are directed solely against the refusal to grant a period for so vacating them, against the granting of such period, or against the determination of its extent;
2. Against orders on petitions filed under subsections (2) or (3).
(7) Subsections (1) to (6) shall not apply to tenancy relationships for residential premises in the sense as defined by section 549 (2) number 3, nor shall they apply to the cases provided for by section 575 of the Civil Code (Bürgerliches Gesetzbuch, BGB). If a tenancy relationship in the sense as defined by section 575 of the Civil Code is terminated without prior notice, the period for vacating the premises may be granted at the longest until the time contractually agreed as the end of the tenancy relationship.
Section 722
Enforceability of foreign judgments
(1) Compulsory enforcement may be pursued under the judgment of a foreign court if such compulsory enforcement is ruled admissible by a judgment for enforcement.
(2) That local court (Amtsgericht, AG) or regional court (Landgericht, LG) shall be competent for entering the judgment on the complaint filed for such judgment with which the debtor has his general venue, and in all other cases, that local court or regional court shall be competent with which a complaint may be filed against the debtor pursuant to section 23.
Section 723
Judgment for enforcement
(1) The judgment for enforcement is to be delivered without a review being performed of the decision’s legality.
(2) The judgment for enforcement is to be delivered only once the judgment handed down by the foreign court has attained legal validity pursuant to the laws applicable to that court. The judgment for enforcement is not to be delivered if the recognition of the judgment is ruled out pursuant to section 328.
Section 724
Enforceable execution copy
(1) Compulsory enforcement will be pursued based on an execution copy of the judgment furnished with the court certificate of enforceability (enforceable execution copy).
(2) The enforceable execution copy is issued by the records clerk of the registry of the court of first instance and, should the legal dispute be pending with a court of higher instance, by the records clerk of that court’s registry.
Section 725
Court certificate of enforceability
The court certificate of enforceability:
“The above execution copy is issued to (designation of the party) for the purposes of compulsory enforcement “
is to be added to the execution copy of the judgment at its end, it is to be signed by the records clerk of the court registry, and is to be furnished with the court seal.
Section 726
Enforceable execution copies where payments or other actions are subject to conditions
(1) In cases in which the enforcement of judgments depends, by their content, on the occurrence of other facts than the provision of security as incumbent on the creditor, which facts are to be proven by the creditor, an enforceable execution copy may be issued only if such proof is established by public records or documents, or records or documents that have been publicly certified.
(2) Insofar as the enforcement of judgments depends on payments to be concurrently made to the debtor by the creditor, or on other actions to be taken by same, proof of the debtor having been satisfied, or of his defaulting on his acceptance of performance, shall be required only if the performance incumbent on the debtor consists of his making a declaration of intent.
Section 727
Enforceable execution copies for and against successors in title
(1) An enforceable execution copy may be issued to the successor in title of the creditor designated in the judgment as well as against that successor in title of the debtor designated in the judgment, and against that possessor of the object that is the subject matter of the legal dispute, against whom the judgment has taken effect pursuant to section 325, provided that the legal succession or the circumstances of possession are known to the court or are proven by public records or documents, or records or documents that have been publicly certified.
(2) If the legal succession or the circumstances of possession are known to the court, this is to be mentioned in the court certificate of enforceability.
Section 728
Enforceable execution copies for reversionary heirs or executors
(1) Where a judgment has been delivered to the provisional heir that, pursuant to section 326, takes effect against the reversionary heir, the stipulations of section 727 shall apply mutatis mutandis to the issuance of an enforceable execution copy for and against the reversionary heir.
(2) If a judgment has been delivered to the executor that takes effect against the heir pursuant to section 327, the same shall apply to the issuance of an enforceable execution copy for and against the heir. An enforceable execution copy may be issued against the heir also in those cases in which the executor is still administering the estate.
Section 729
Enforceable execution copies against parties taking over the property of another person and against parties acquiring firms
(1) Where a person has taken over the property of another person by way of a contract with the latter, and after the culpability of that other party has been determined in a final and binding judgment, the stipulations of section 727 shall apply mutatis mutandis to the issuance of an enforceable execution copy of the judgment against the party so taking over property or acquiring a firm.
(2) The same shall apply to the issuance of an enforceable execution copy against that person who continues a commercial enterprise acquired while both parties are alive (inter vivos), operating it under the same name, with a view to the liabilities for which that person is liable pursuant to section 25 (1), first sentence, subsection (2) of the Commercial Code (Handelsgesetzbuch), provided such liabilities have been established in a final and binding judgment against the earlier proprietor prior to the acquisition of the business.
Section 730
Hearing the debtor
In the cases provided for by section 726 (1) and sections 727 to 729, the debtor may be heard prior to the issuance of the enforceable execution copy.
Section 731
Action brought for issuance of the court certificate of enforceability
Should it not be possible to provide proof in the manner required by section 726 (1) and sections 727 to 729 by public records or documents, or records or documents that have been publicly certified, the creditor is to file an action based on the judgment stipulating the issuance of a court certificate of enforceability with the court of first instance hearing the case.
Section 732
Reminder serving as a legal remedy against the issuance of the court certificate of enforceability
(1) The court the registry of which has issued the certificate of enforceability shall decide on objections filed by the debtor concerning the admissibility of the court certificate of enforceability. The decision is delivered by a court order.
(2) Prior to delivering the decision, the court may issue an interim order; in particular, the court may direct that compulsory enforcement is to be temporarily stayed, against provision of security or without provision of security, or that it is to be continued only against the provision of security.
Section 733
Additional enforceable execution copies
(1) Prior to an additional enforceable execution copy being issued, the debtor may be heard unless the execution copy first issued is returned.
(2) The court registry is to notify the opponent of the fact that an additional execution copy has been issued.
(3) The additional execution copy is to be expressly designated as such.
Section 734
Note recorded on the original of the judgment regarding the issuance of an execution copy
Prior to physical delivery of an enforceable execution copy, it is to be noted on the original of the judgment for which party the execution copy was issued, and at what time this was done. Where the court records of the dispute are kept as electronic documents, this note is to be recorded in a separate electronic document. The document is to be joined to the judgment such that it cannot be separated.
Section 735
Compulsory enforcement against an association having no legal capacity
In order to pursue compulsory enforcement against the assets of an association having no legal capacity, the delivery of a judgment against this association shall be deemed compliant with this rule.
Section 736
Compulsory enforcement against a partnership under the Civil Code
The delivery of a judgment against all partners of a partnership established pursuant to section 705 of the Civil Code (Bürgerliches Gesetzbuch, BGB) is required in order to pursue compulsory enforcement against the assets of such partnership.
Section 737
Compulsory enforcement in the cases of usufruct rights concerning assets or inheritance
(1) If assets are subject to usufruct rights, compulsory enforcement against the objects that are subject to the usufruct rights for liabilities incurred prior to the usufruct’s establishment by the party having established the usufruct shall be admissible if the party establishing the usufruct right has been sentenced to perform under compulsory enforcement and if the beneficiary of the usufruct has been sentenced to tolerate it.
(2) The same shall apply, in cases in which usufruct has been established for an inheritance, to the liabilities of the estate.
Section 738
Enforceable execution copy issued against the beneficiaries of usufruct
(1) Where the usufruct of assets was established following the final and binding determination of the debts of the party establishing such usufruct, the stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an enforceable execution copy of the judgment against the beneficiary of the usufruct that has been delivered with a view to the objects subject to the usufruct right.
(2) The same shall apply, if usufruct has been established for an inheritance, to the issuance of an enforceable execution copy of the judgment promulgated against the testator.
Section 739
Presumption of custody and control in the case of compulsory enforcement against spouses and partners in a civil union
(1) Insofar as it is presumed, to the benefit of the creditor of the spouse in a marriage pursuant to section 1362 of the Civil Code (Bürgerliches Gesetzbuch, BGB), that the debtor is the owner of movable objects, then solely the debtor shall be deemed to be, in the context of implementing the compulsory enforcement, the person having custody and control of those objects and their possessor, notwithstanding any rights of third parties.
(2) Subsection (1) shall apply mutatis mutandis to the presumption provided for by section 8 (1) of the Act on Civil Unions (Lebenspartnerschaftsgesetz, LPartG) to the benefit of the creditor of one of the partners in a civil union.
Section 740
Compulsory enforcement with respect to the common marital property of both spouses
(1) If a marriage is subject to the regime of common marital property and one of the spouses manages the common marital property alone, a judgment delivered against that spouse shall be required, and deemed compliant with the present rule, for pursuing compulsory enforcement against the common marital property of both spouses.
(2) If the spouses are jointly managing their common marital property, compulsory enforcement against the common marital property of both spouses shall be admissible only if both spouses have been sentenced to make payments or to take other actions.
Section 741
Compulsory enforcement against the common marital property of both spouses where there is a business
If a marriage is subject to the regime of common marital property and one of the spouses who is not managing the common marital property, or not managing it alone, is doing business as a sole trader, a judgment delivered against that spouse shall be deemed compliant with the present rule for pursuing compulsory enforcement against the common marital property of both spouses, unless, at the time at which the matter became pending, the protest filed by the other spouse against the operation of the business, or a revocation of the spouse’s consent to the business, had been entered in the Matrimonial Property Register (Güterrechtsregister).
Section 742
Enforceable execution copy in the case of marriages becoming subject to the regime of common marital property only in the course of the legal dispute
If the marriage has become subject to the regime of common marital property only after a legal dispute has become pending that is being pursued by one of the spouses, or against one of the spouses, and where that spouse does not manage the common marital property, or does not manage it alone, the stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an execution copy of the judgment that is enforceable with a view to the common marital property for or against the other spouse.
Section 743
Terminated regime of common marital property
Once the regime of common marital property has been terminated, compulsory enforcement against the common marital property of both spouses shall be admissible prior to the distribution of the property if both spouses have been sentenced to making the payment or taking any other action, or if one spouse has been so sentenced and the other spouse has been sentenced to tolerate compulsory enforcement.
Section 744
Enforceable execution copy where the regime of common marital property has been terminated
If the regime of common marital property has been terminated following the termination of a legal dispute involving the spouse who is managing the common marital property alone, the stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an execution copy of the judgment that is enforceable against the other spouse with a view to the common marital property.
Section 744a
Compulsory enforcement in the case of a community of property and assets
If a marriage is subject to the regime of a community of property and assets, pursuant to Article 234 section 4 (2) of the Introductory Law for the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch, EGBGB), then sections 740 to 744, 774 and 860 shall apply mutatis mutandis to compulsory enforcement against the objects forming part of the community of property and assets.
Section 745
Compulsory enforcement in the case of the regime of common marital property continuing in force
(1) Where there is a continuing regime of common marital property, a judgment delivered against the surviving spouse shall be required, and deemed compliant with the present rule, in order to pursue compulsory enforcement against the common marital property of both spouses.
(2) Following the end of the continuing regime of common marital property, the stipulations of sections 743 and 744 shall apply subject to the proviso that the stead of the spouse managing the common marital property alone shall be taken by the surviving spouse, and that the stead of the other spouse shall be taken by the descendants entitled to a share of the marital property.
Section 746
(repealed)
Section 747
Compulsory enforcement against an estate that has not been partitioned
In cases in which several parties are heirs of an estate, compulsory enforcement against an estate will require a judgment to be delivered against all heirs until the estate is partitioned.
Section 748
Compulsory enforcement where an executor has been appointed
(1) Insofar as an estate is subject to administration by an executor, a judgment delivered against the executor shall be required, and deemed compliant with the present rule, in order to pursue compulsory enforcement against the estate.
(2) Should the executor be only entitled to administer individual items constituting the estate, compulsory enforcement against these items shall be admissible only where the heir is sentenced to make payment or to take other action and where the executor is sentenced to tolerate compulsory enforcement.
(3) In the case provided for by subsection (1) as well as in the case provided for by subsection (2), a judgment delivered both against the heir and against the executor is required in order to pursue compulsory enforcement against a claim on a compulsory portion of the inheritance.
Section 749
Enforceable execution copies for and against executors
The stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an enforceable execution copy for or against the executor of a judgment delivered for or against the testator. Based on such an execution copy, compulsory enforcement shall be admissible only with regard to the items constituting the estate subject to administration by the executor.
Section 750
Prerequisites for compulsory enforcement
(1) Compulsory enforcement may be commenced only if the persons for and against whom it is to be performed have been designated by name in the judgment or in the court certificate of enforceability attached to it, and if the judgment has already been served or is served concurrently. Service by the creditor shall be deemed compliant with the present rule; in such event, the execution copy of the judgment need not set out the facts and circumstances on which the ruling is based, nor need it set out its reasons.
(2) Where the enforcement concerns a judgment the enforceable execution copy of which was issued pursuant to section 726 (1), or where a judgment that is legally effective for or against one of the persons designated therein in accordance with sections 727 to 729, 738, 742, 744, section 745 (2) and section 749 is to be enforced for or against one of these persons, the court certificate of enforceability must also have been served along with the judgment to be enforced prior to the commencement of compulsory enforcement, or must be served concurrently with the commencement of compulsory enforcement, and where the court certificate of enforceability has been issued based on public records or documents, or based on records or documents that have been publicly certified, a copy of such records of documents is likewise to be served.
(3) A compulsory enforcement pursuant to section 720a may be commenced only if the judgment and the court certificate of enforceability have been served at least two (2) weeks earlier.
Section 751
Conditions for the commencement of enforcement
(1) Should the assertion of the claim be dependent on the occurrence of a calendar date, compulsory enforcement may not be commenced prior to midnight of that day of the calendar.
(2) Should the enforcement depend on the provision of security incumbent on the creditor, compulsory enforcement may only be commenced or continued if the provision of security has been proven by a public record or document, or a record or document that has been publicly certified, and if a copy of such record or document has already been served or is served concurrently.
Section 752
Provision of security in the event of partial enforcement
Where the creditor pursues compulsory enforcement in the cases as described in section 751 (2) only for a partial amount, the amount of the security to be provided shall be in proportion to the ratio between the partial amount and the total amount. If the debtor may avert the enforcement, in the cases provided for by section 709, pursuant to section 712 subsection (1), first sentence, the first sentence shall apply to him mutatis mutandis.
Section 753
Enforcement by court-appointed enforcement officers
(1) Unless the compulsory enforcement is assigned to the courts, it will be implemented by court-appointed enforcement officers who are to effect it on behalf of the creditor.
(2) The creditor may avail himself of the assistance of the court registry in charging an officer with the task of compulsory enforcement. The court-appointed enforcement officer charged with the task by the court registry shall be deemed to have been charged by the creditor.
(3) The Federal Ministry of Justice is authorised to introduce forms, use of which shall be mandatory, for charging the court-appointed enforcement officer with his task as provided for by subsection (2), such forms being subject to approval by the Bundesrat and being made by statutory instrument. Special forms may be provided for instances in which instructions are submitted electronically.
Section 754
Enforcement instructions and enforceable execution copy
(1) The court-appointed enforcement officer is authorised by the enforcement instructions, and by the enforceable execution copy being physically handed over to him, to accept performance by the debtor, to issue receipts in this regard, and to enter into payment agreements with effect for the creditor, subject to the stipulations set out in Section 802b.
(2) The court-appointed enforcement officer is authorised, by his possession of the enforceable execution copy, to effect compulsory enforcement and to take the actions designated in subsection (1) vis-à-vis the debtor and third parties. Where the instructions to the enforcement officer were deficient or where they were issued with restrictions, this fact may not be asserted by the creditor vis-à-vis such persons.
Section 755
Determining the debtor’s place of abode
(1) Where the debtor’s place of residence or his usual place of abode is not known, the court-appointed enforcement officer is permitted to determine the debtor’s place of abode, based on the enforcement instructions and due to his having been physically handed over the enforceable execution copy, by obtaining the current addresses along with information on the debtor’s main residence and secondary residence from the registration authority.
(2) Should it not be possible to determine the debtor’s place of abode pursuant to subsection (1), the court-appointed enforcement officer is permitted to take the following actions:
1. To initially obtain from the Central Register of Foreigners information on the foreigners authority keeping the files on the debtor, along with information on the debtor’s having moved to or from a location, and subsequently to obtain the debtor’s place of abode from the foreigners authority keeping the files on the debtor identified by the inquiry made with the Central Register of Foreigners,
2. To obtain from the statutory pension insurance funds the address of the debtor as currently filed there, as well as his current or future place of abode,
3. To obtain from the Federal Motor Transport Authority (Kraftfahrt-Bundesamt) the vehicle keeper information pursuant to section 33 (1), first sentence, no. 2 of the Road Traffic Act (Strassenverkehrsgesetz, StVG).
Where the debtor is a citizen of the Union, the court-appointed enforcement officer may collect the data pursuant to number 1 of the first sentence only if he has at hand factual indications giving rise to the assumption that it will be determined that the debtor has no rights under the principle of freedom of movement, or has lost such rights. The transmission to the enforcement officer of the data obtained pursuant to number 1 of the first sentence is ruled out if the debtor is a citizen of the Union regarding whom it has not been determined that he has no rights under the principle of freedom of movement, or that he has lost such rights. The enforcement officer is permitted to collect the data pursuant to nos. 2 and 3 of the first sentence only if the claims to be enforced amount to at least 500 euros; the enforcement costs and ancillary claims shall be included in the calculation only if they alone are the subject matter of the enforcement instructions.
Section 756
Compulsory enforcement where performance is to be made concurrently
(1) If the enforcement depends on concurrent performance by the creditor to the debtor, the court-appointed enforcement officer may not commence compulsory enforcement prior to having offered the debtor the performance to which the latter is entitled, doing so in a manner establishing default of acceptance, unless proof is submitted by public records or documents that the debtor has been satisfied or is defaulting on his acceptance, or by records or documents that have been publicly certified, and a copy of such records or documents has already been served, or is served concurrently.
(2) The court-appointed enforcement officer may commence compulsory enforcement if the debtor declares, upon the court-appointed enforcement officer having orally offered the payment or other action, that he will not accept such payment or other action.
Section 757
Physical submission of the legal title and receipt note
(1) Following receipt of the payment or following other action he has taken, the court-appointed enforcement officer is to surrender to the debtor the enforceable execution copy in addition to a receipt note; should performance be made only partially, he is to note this on the enforceable execution copy and is to issue a receipt note to the debtor.
(2) The right of the debtor to retroactively demand that the creditor himself issue a receipt note is not affected by the present rules.
Section 758
Searches; use of force
(1) The court-appointed enforcement officer is authorised to search the debtor’s residence and any means of storage insofar as the purpose of the enforcement so requires.
(2) He is authorised to have any locked house doors opened, as well as doors to rooms and means of storage that may be locked.
(3) Should the court-appointed enforcement officer encounter resistance, he shall have authority to use force and may for this purpose ask the police for support.
Section 758a
Search warrant issued by a judge; enforcement at an inopportune time
(1) The debtor’s residence may be searched without his consent only on the basis of a search warrant issued by a judge with the local court (Amtsgericht, AG) in the jurisdiction of which the search is to be performed. This shall not apply where procuring the warrant would jeopardise the success of the search.
(2) Subsection (1) shall not apply to the enforcement of a legal document ordering the vacation or surrender of premises, nor shall it be applied to the enforcement of a warrant for arrest pursuant to section 802g.
(3) Where the debtor consents to the search, or where a warrant pursuant to subsection (1), first sentence, has been issued, or where this can be dispensed with pursuant to subsection (1), second sentence, persons sharing in the custody of the debtor’s residence are to tolerate the search. Any inequitable hardship for persons sharing in the custody and control of his property is to be avoided.
(4) The court-appointed enforcement officer shall not take an enforcement action during the night-time and on Sundays and holidays if this would entail an inequitable hardship for the debtor and the persons sharing in the custody and control of his property, or if the expected results are not congruent with the scope of the intrusion; in residences, the court-appointed enforcement officer shall take an enforcement action only on the basis of a special order issued by a judge at the local court (Amtsgericht, AG). The night-time hours are defined as the time from 21:00 hours to 6:00 hours.
(5) At the time compulsory enforcement is implemented, the order pursuant to subsection (1) is to be shown.
(6) The Federal Ministry of Justice is authorised to introduce forms for the petition for an issuance of a search warrant by a judge as provided for by subsection (1), such forms being subject to approval by the Bundesrat and being made by statutory instrument. To the extent forms have been introduced in accordance with the first sentence, the claimant must use them. Different types of forms may be introduced for proceedings before courts that process these matters electronically, and for proceedings before courts that do not process these matters electronically.
Section 759
Involvement of witnesses
In cases in which an enforcement action is resisted, or in which neither the debtor nor an adult family member, a person employed by the family or an adult permanent cohabitant is present when the enforcement action is to be taken in the debtor’s residence, the court-appointed enforcement officer is to involve as witnesses two (2) adult persons, or a municipal official, or a police officer.
Section 760
Inspection of files; copies of files
Each person involved in the enforcement proceedings is to be allowed to inspect the files of the court-appointed enforcement officer upon a corresponding request being made, and copies of individual documents in the file are to be issued to that person. If the court-appointed enforcement officer keeps his files as electronic records, inspection of the files shall be enabled by providing hard-copy printouts, by transmitting electronic documents, or by displaying them on a screen; this also applies to the files electronically stored pursuant to section 885a (2), second sentence.
Section 761
(repealed)
Section 762
Record of the hearing regarding enforcement measures
(1) The court-appointed enforcement officer is to prepare a record of each enforcement action he has taken.
(2) The record must include:
1. The place and date of the enforcement action;
2. The subject matter of the enforcement action, briefly outlining the essential course of the enforcement and actions taken therein;
3. The names of the persons with whom he has had dealings;
4. The signature of these persons and the note that the document was signed after having been read out loud to them, or after having been submitted to them for their review, and after having been approved;
5. The signature of the court-appointed enforcement officer.
(3) Should it not have been possible to conform to one of the requirements designated in number 4, the reasons therefor are to be provided.
Section 763
Notices and communications
(1) The notices and other communications forming part of the enforcement measures are to be made orally by the court-appointed enforcement officer and shall be included fully in the record.
(2) Where this cannot be done orally, the court-appointed enforcement officer is to serve a copy of the record or is to mail it. The record must set out the note that this rule has been complied with. No service may be made by publication.
Section 764
Court responsible for execution
(1) Ordering enforcement measures as assigned to the courts, and the assistance with such measures, is the responsibility of the local courts (Amtsgericht, AG) as the courts responsible for execution.
(2) Unless another local court is designated by law, that local court shall be responsible for execution in the district of which the enforcement proceedings are to be performed or have been performed.
(3) The decisions of the execution court are issued by a court order.
Section 765
Orders issued by the execution court where performance is to be made concurrently
If the enforcement depends on concurrent performance by the creditor to the debtor, the court responsible for execution may only direct enforcement activities if:
1. Proof is provided, by submitting public records or documents, or records or documents that have been publicly certified, and a copy of such records or documents has already been served, that the debtor has been satisfied or is defaulting on acceptance; no service need be made if the court-appointed enforcement officer had already commenced compulsory enforcement pursuant to section 756 (1) and such proof is provided by the record prepared by the court-appointed enforcement officer; or
2. The court-appointed enforcement officer has effected an enforcement measure pursuant to section 756 (2) and this is proven by the record prepared by the court-appointed enforcement officer.
Section 765a
Protection from execution
(1) Upon a corresponding petition being filed by the debtor, the court responsible for execution may reverse a measure of compulsory enforcement in its entirety or in part, may prohibit it, or may temporarily stay such measure if, upon comprehensively assessing the creditor’s justified interest in protection, the court finds that the measure entails a hardship that due to very special circumstances is immoral (contra bonos mores). The execution court is authorised to deliver the orders designated in section 732 (2). Should the measure concern an animal, the execution court is to consider, in weighing the matter, the responsibility that the person has for the animal.
(2) The court-appointed enforcement officer may delay a measure serving to obtain the surrender of objects until the court responsible for execution delivers a decision, but may not so delay it for longer than one (1) week, if the prerequisites set out in subsection (1), first sentence, are demonstrated to his satisfaction and if it was not possible for the debtor to refer the matter to the execution court.
(3) In matters pertaining to the vacation of premises, the petition pursuant to subsection (1) is to be filed at the latest within two (2) weeks prior to the date set for the vacation of the premises, unless the grounds on which the petition is based came about only after this time or the debtor was prevented from filing the petition in due time through no fault of his own.
(4) The execution court shall reverse its order, upon a corresponding petition being filed, or shall modify it, if this is mandated with a view to the change of the overall factual situation.
(5) Enforcement activities may be abrogated in the cases provided for by subsection (1), first sentence, and subsection (4) only once the order has become final and binding.
Section 766
Reminder serving as a legal remedy against the nature and manner of compulsory enforcement
(1) The court responsible for execution shall rule on petitions, objections, and reminders concerning the nature and manner of compulsory enforcement or the manner of proceeding to be observed by the court-appointed officer in the course of compulsory enforcement. The execution court is authorised to deliver the orders designated in section 732 (2).
(2) The court responsible for execution shall also be entitled to hand down the decision should a court-appointed enforcement officer refuse to assume the enforcement instructions or to perform an enforcement action in accordance with the instructions, or if reminders are lodged for the costs charged by the court appointed enforcement officer.
Section 767
Action raising an objection to the claim being enforced
(1) Debtors are to assert objections that concern the claim itself as established by the judgment by filing a corresponding action with the court of first instance hearing the case.
(2) Such objections by way of an action may admissibly be asserted only insofar as the grounds on which they are based arose only after the close of the hearing that was the last opportunity, pursuant to the stipulations of the present Code, for objections to be asserted, and thus can no longer be asserted by entering a protest.
(3) In the action that he is to file, the debtor must assert all objections that he was able to assert at the time at which he filed the action.
Section 768
Action brought against a court certificate of enforceability
The stipulations of section 767 subsections (1) and (3) shall apply mutatis mutandis if, in the cases provided for by section 726 (1), sections 727 to 729, 738, 742, 744, section 745 (2) and section 749, the debtor disputes that the prerequisite for the issuance of the court certificate of enforceability has in fact been met, as had been assumed to be proven at the time such court certificate was issued, and shall so apply notwithstanding the authority of the debtor in such cases to file objections against the admissibility of the court certificate of enforceability pursuant to section 732.
Section 769
Interim orders
(1) Upon a corresponding petition being filed, the court hearing the case may direct that until the judgment has been entered regarding the objections designated in sections 767 and 768, compulsory enforcement be stayed against or without provision of security, or that it be continued only against the provision of security and that enforcement activities are to be abrogated against provision of security. The court shall not assess any security for the stay of compulsory enforcement where the debtor is unable to provide security, and where the action he is bringing holds out sufficient prospects of success. The factual assertions on which the petition is based are to be demonstrated to the satisfaction of the court.
(2) In urgent cases, the court responsible for execution may issue such an order, setting a time limit for the court hearing the case to deliver its decision. Once the deadline has expired without success, the compulsory enforcement shall be continued.
(3) The decision regarding these petitions is issued by a court order.
(4) Insofar as an action for modification is pending that is directed at a reduction, subsections (1) to (3) shall apply mutatis mutandis.
Section 770
Interim orders set out in the judgment
The court hearing the case may issue the orders designated in the preceding section, or it may reverse, modify, or confirm any orders already issued, in the judgment by which a decision is taken as to the objections. The stipulations of section 718 shall apply mutatis mutandis to the contestation of such decision.
Section 771
Third-party proceedings instituted to prevent the execution of a judgment
(1) If a third party claims to have title preventing the disposal of an object subject to compulsory enforcement, it shall lodge the opposition against compulsory enforcement by filing a corresponding court action with the court in the district of which compulsory enforcement is being pursued.
(2) Where the action is filed both against the creditor and the debtor, they are to be deemed joined parties.
(3) The stipulations of sections 769 and 770 shall apply mutatis mutandis to instances in which compulsory enforcement is stayed, and to the abrogation of any enforcement activities already pursued. Enforcement activities admissibly may be abrogated also without any security being provided.
Section 772
Third-party proceedings instituted to prevent the execution of a judgment where the disposition of assets has been prohibited
As long as a prohibition of disposition of the type designated in sections 135 and 136 of the Civil Code (Bürgerliches Gesetzbuch, BGB) exists, the object to which such prohibition refers shall not be disposed of or transferred, by way of compulsory enforcement of any personal claim or based on a right that, as a result of the prohibition, is invalid. An opposition may be lodged subject to section 771 based on the prohibition of disposition.
Section 773
Third-party proceedings instituted to prevent the execution of a judgment by a reversionary heir
An object forming part of the inheritance of the provisional heir shall not be disposed of or transferred by way of compulsory enforcement if the disposition or the transfer is invalid vis-à-vis the reversionary heir in those cases in which the reversionary succession occurs pursuant to section 2115 of the Civil Code (Bürgerliches Gesetzbuch, BGB). The reversionary heir may lodge an opposition subject to the provisions of section 771.
Section 774
Third-party proceedings instituted to prevent the execution of a judgment by a spouse
If, pursuant to section 741, compulsory enforcement is pursued with regard to the common marital property of both spouses, one of the spouses may lodge an opposition pursuant to section 771 in those cases in which, with a view to the common marital property, the judgment promulgated against the other spouse has no legal effect for the opposing spouse.
Section 775
Termination or limitation of compulsory enforcement
Compulsory enforcement shall be terminated or limited where:
1. The execution copy of an enforceable decision is produced that shows that the judgment to be enforced or its provisional enforceability have been repealed, or that compulsory enforcement has been declared inadmissible, or that its termination has been directed;
2. The execution copy of a court decision is produced that shows the temporary stay of enforcement or enforcement activities to have been directed, or that enforcement may be continued only against provision of security;
3. A public record or document is produced that shows that the security averting enforcement, or the lodgment required for this purpose, has been provided or made;
4. A public record or document is produced, or a private record or document created by the creditor, that shows that the creditor is satisfied after the delivery of the judgment to be enforced, or that he has consented to deferral;
5. The credit slip proving payment in cash or by wire transfer effected by a bank or savings bank is produced, showing that the amount required to satisfy the creditor has been paid into the account of the creditor or has been transferred to it for payment to same.
Section 776
Abrogation of enforcement activities
In the cases provided for by section 775 numbers 1 and 3, the enforcement activities already pursued are to be abrogated. In the cases provided for by numbers 4 and 5, these activities shall continue in force on a provisional basis; the same shall apply to the cases set out in number 2, provided that the decision does not also direct the repeal of the enforcement measures taken thus far.
Section 777
Reminder serving as a legal remedy in the event sufficient security has been provided to the creditor
Should the creditor possess a movable object belonging to the debtor, concerning which he is entitled to a security right or a right of retention for his claim, the debtor may oppose compulsory enforcement against his other assets pursuant to section 766 to the extent the claim is covered by the value of that object. If the creditor is entitled to such right concerning the object also for another claim, such opposition may only be admissibly lodged where this claim as well is covered by the value of the object.
Section 778
Compulsory enforcement prior to acceptance of an inheritance
(1) For as long as the heir has not accepted an inheritance, compulsory enforcement may admissibly be pursued only with regard to the estate for a claim against the estate.
(2) Compulsory enforcement regarding any liability the heir may have on his own may not permissibly be pursued against the estate prior to the heir’s having accepted the inheritance. ,
Section 779
Continuation of compulsory enforcement following the debtor’s death
(1) Any compulsory enforcement that had already been commenced against the debtor at the time of his death shall be continued against his estate.
(2) Should it be necessary to involve the debtor in performing an enforcement action, and should the inheritance not have been accepted yet, or should the heir be unknown, or should it be uncertain whether or not he has accepted the inheritance, the court responsible for execution is to appoint a special provisional representative for the heir, upon the creditor having filed the corresponding petition. No such appointment shall be made where a curator has been appointed for the estate or where an executor is responsible for administering the estate.
Section 780
Reservation as to the limited liability of an heir for the debts of the estate
(1) A defendant sentenced as a debtor’s heir may assert a limitation of his liability only if this has been reserved in the judgment.
(2) No such reservation is required if the government treasury is made the statutory heir by a ruling of the court, or if the judgment is delivered regarding a liability of the estate against an attorney for the estate or any other court-appointed curator of the estate, or against an executor responsible for administering the estate.
Section 781
Limited liability of an heir in compulsory enforcement proceedings
Should compulsory enforcement be pursued against the heir of the debtor, the limitation of liability shall not be taken into account until the heir has lodged objections against compulsory enforcement based on such limitation of liability.
Section 782
Defence pleas of the heir against creditors of the estate
On the basis of the defence pleas to which he is entitled pursuant to sections 2014 and 2015 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the heir may only demand that compulsory enforcement be limited, for the duration of the periods determined therein, to such enforcement activities that are admissible in order to enforce a seizure. Where, prior to the expiry of the period, the opening of insolvency proceedings regarding the estate is petitioned, the limitation of compulsory enforcement is to be upheld also after the expiry of the period, upon a corresponding petition having been filed, until a final and binding judgment has been delivered regarding the opening of the insolvency proceedings regarding the estate.
Section 783
Defence pleas of the heir against personal creditors
The heir may demand a limitation of compulsory enforcement concerning the items constituting the estate pursuant to section 782 also from those creditors who are not creditors of the estate, unless the heir is liable for the estate’s liabilities without limitation.
Section 784
Compulsory enforcement where an estate is in administration or subject to insolvency proceedings
(1) If the administration of an estate has been directed, or if insolvency proceedings have been opened regarding the estate, the heir may demand that the enforcement activities be abrogated that have been taken to the benefit of a creditor of the estate against those of the heir’s assets that do not constitute part of the estate, unless the heir is liable for the estate’s liabilities without limitation.
(2) In the case of the estate being in administration, the attorney for the estate shall be entitled to the same rights as the heir regarding the enforcement activities that have been pursued against the estate to the benefit of another creditor in his capacity as creditor of the estate.
Section 785
Action brought by the heir by way of raising an objection to the claim being enforced
The objections raised in accordance with sections 781 to 784 shall be dealt with in accordance with the stipulations of sections 767, 769, 770.
Section 786
Action raising an objection to the claim being enforced in the case of limited liability
(1) The stipulations of section 780 (1) and of sections 781 to 785 shall apply mutatis mutandis to the limited liability given pursuant to section 1489 of the Civil Code (Bürgerliches Gesetzbuch, BGB), while the stipulations of section 780 (1) and of sections 781 and 785 shall apply mutatis mutandis to the limited liability given pursuant to sections 1480, 1504, 1629a, 2187 of the Civil Code (Bürgerliches Gesetzbuch, BGB).
(2) Where compulsory enforcement is pursued based on judgments promulgated prior to the date on which the Act Limiting the Liability of Minors (Minderjährigenhaftungsbeschränkungsgesetz) of 25 August 1998 entered into force (published in Federal Law Gazette (Bundesgesetzblatt, BGBl.) I page 2487) on 1 July 1999, the limitation of liability pursuant to section 1629a of the Civil Code (Bürgerliches Gesetzbuch, BGB) may be asserted also where it has not been reserved in the judgment pursuant to section 780 (1) of the present Code.
Section 786a
Limitation of liability under the laws of the sea and the laws governing inland waterways transport
(1) The stipulations of section 780 (1) and of section 781 shall apply mutatis mutandis to the limitation of liability arising in the cases provided for by section 611 subsections (1) or (3), sections 612 to 616 of the Commercial Code (Handelsgesetzbuch, HGB) or pursuant to sections 4 to 5m of the Inland Waterways Act (Binnenschifffahrtsgesetz).
(2) If the judgment has been promulgated subject to a reservation pursuant to section 305a, the following rules shall apply to compulsory enforcement:
1. Where a petition is filed to institute distribution proceedings under the laws of the sea or the laws governing inland waterways transport in accordance with the Distribution Ordinance under Shipping Laws (Schifffahrtsrechtliche Verteilungsordnung), in which the creditor is a party with his claim, the court shall deliver its decision pursuant to section 5 (3) of the Distribution Ordinance under Shipping Laws regarding the termination of compulsory enforcement; upon the institution of the distribution proceedings under the laws of the sea, the stipulations of section 8 subsections (4) and (5) of the Distribution Ordinance under Shipping Laws are to be applied; upon institution of the distribution proceedings under the laws governing inland waterways transport, the stipulations of section 8 subsections (4) and (5) in conjunction with section 41 of the Distribution Ordinance under Shipping Laws are to be applied.
2. Where, pursuant to Article 11 of the Convention on Limitation of Liability for Maritime Claims (section 611 (1), first sentence, of the Commercial Code (Handelsgesetzbuch, HGB)), a fund has been established by the debtor, or on his behalf, in another signatory state of the Convention, the stipulations of section 50 of the Distribution Ordinance under Shipping Laws are to be applied to the extent the creditor has asserted his claim against the fund. Where the creditor has not asserted the claim against the fund, or where the prerequisites set out in section 50 (2) of the Distribution Ordinance under Shipping Laws have not been met, any objections filed on the basis of the right to limit liability shall be dealt with and terminated pursuant to the stipulations of sections 767, 769, 770; the same shall apply where the fund is established in the other signatory state only upon the right to limit liability being asserted.
3. If a fund has been established by the debtor, or on his behalf, in another signatory state of the Strasbourg Convention on Limitation of Liability in Inland Navigation (CLNI, published in the Federal Law Gazette (Bundesgesetzblatt, BGBl.) 1988 II page 1643), then section 52 of the Distribution Ordinance under Shipping Laws is to be applied should the creditor have asserted his claim against the fund. Where the creditor has not asserted the claim against the fund, or where the prerequisites set out in section 52 (3) of the Distribution Ordinance under Shipping Laws have not been met, any objections filed on the basis of the right to limit liability pursuant to sections 4 to 5m of the Inland Waterways Act (Binnenschifffahrtsgesetz) shall be dealt with and terminated pursuant to the stipulations of sections 767, 769, 770; the same shall apply where the fund is established in the other signatory state only upon the right to limit liability being asserted.
(3) If the judgment of a foreign court has been promulgated subject to the reservation that the defendant may assert the right to limit liability if a fund has been established pursuant to Article 11 of the Convention on Limitation of Liability for Maritime Claims or pursuant to Article 11 of the Strasbourg Convention on Limitation of Liability in Inland Navigation, or if it is so established upon the right to limit liability being asserted, the stipulations of subsection (2) shall apply mutatis mutandis to compulsory enforcement against the claim established by that judgment.
Section 787
Compulsory enforcement where real estate or a ship is ownerless
(1) Insofar as the compulsory enforcement is to assert a right to a plot of real estate that was relinquished by its previous owner pursuant to section 928 of the Civil Code (Bürgerliches Gesetzbuch, BGB) and has not yet been acquired by the party entitled to appropriation, the court responsible for execution is to appoint a representative, upon corresponding application being made, who shall be responsible, until title to the property has been entered in the land register in the name of a new owner, for protecting the rights and fulfilling the obligations resulting from the property in compulsory enforcement proceedings.
(2) Subsection (1) shall apply mutatis mutandis where a right to a registered ship or ship under construction is to be asserted by compulsory enforcement, which ship or ship under construction had been relinquished by its owner pursuant to section 7 of the Act on Rights to Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken) of 15 November 1940 (Law Gazette of the Reich (Reichsgesetzblatt, RGBl.) I page 1499) and has not yet been acquired by the party entitled to appropriation.
Section 788
Costs of compulsory enforcement
(1) To the extent the costs of compulsory enforcement were required (section 91), they shall be borne by the debtor; they are to be recovered concurrently with the claim subject to compulsory enforcement. The costs of preparing an execution of the judgment and of serving it shall also be deemed to be the costs of compulsory enforcement. To the extent a plurality of debtors have been sentenced as joint and several debtors, they shall also be liable for the costs of compulsory enforcement as joint and several debtors; section 100 subsections (3) and (4) shall apply mutatis mutandis.
(2) Upon corresponding application being made, the execution court with which an enforcement action is pending at the time of the application shall determine the costs pursuant to section 103 (2) and sections 104 and 107; after the termination of compulsory enforcement, this shall be done by the court in the district of which the last enforcement action was taken. If enforcement is pursued in accordance with the stipulations of sections 887, 888 and 890, the court of first instance hearing the case shall take the decision.
(3) The debtor is to be reimbursed for the costs of compulsory enforcement wherever the judgment based on which compulsory enforcement was pursued has been repealed.
(4) The court may impose on the creditor the costs of proceedings pursuant to sections 765a, 811a, 811b, 829, 850k, 850l, 851a and 851b, in their entirety or in part, should this be equitable for special reasons given in the creditor’s conduct.
Section 789
Involvement of public authorities
Should a public authority need to be involved for the purposes of compulsory enforcement, the court is to request that the public authority take action.
Section 790
(repealed)
Section 791
(repealed)
Section 792
Issuance of records or documents to creditors
If the creditor requires a certificate of inheritance for the purposes of compulsory enforcement, or any other record or document that is to be issued to the debtor, upon corresponding application being made, by a public authority, a civil servant or a notary, he may take the stead of the debtor in demanding that it be so issued.
Section 793
Complaint subject to a time limit
A complaint subject to a time limit may be filed against decisions that may be taken in compulsory enforcement proceedings without a hearing for oral argument being held.
Section 794
Further enforceable legal documents
(1) Compulsory enforcement may furthermore be pursued:
1. Based on settlements concluded by the parties, or between one of the parties and a third party, in order to resolve the legal dispute either in its full scope or as regards a part of the subject matter of the litigation, before a German court or before a dispute-resolution entity established or recognised by the Land department of justice (Landesjustizverwaltung), as well as based on settlements that have been recorded pursuant to section 118 (1), third sentence, or section 492 (3) for the record of the judge;
2. Based on orders assessing the costs;
2a. (repealed)
2b. (repealed)
3. Based on decisions against which a complaint may be lodged as an appellate remedy;
3a. (repealed)
4. Based on writs of execution;
4a. Based on decisions declaring arbitration awards as enforceable, provided that the decisions are final and binding or have been declared provisionally enforceable;
4b. Based on orders pursuant to section 796b or section 796c;
5. Based on records or documents that have been recorded in accordance with the requirements as to form by a German court or by a German notary within the bounds of his official authority, provided that the record or document has been recorded regarding a claim that can be provided for by a settlement, that is not directed at obtaining a declaration of intent, and that does not concern the existence of a tenancy relationship for residential spaces, and furthermore provided that the debtor has subjected himself, in the record or document, to immediate compulsory enforcement of the claim as specified therein;
6. Based on European orders for payment that have been declared enforceable.
(2) Insofar as, pursuant to the stipulations of sections 737, 743, section 745 (2), and of section 748 (2) it is necessary to sentence a party involved to tolerating compulsory enforcement, this shall be substituted by the party involved approving, in a record or document prepared pursuant to subsection (1) number 5, the immediate compulsory enforcement against the objects that are subject to the title he holds.
Section 794a
Compulsory enforcement based on a settlement reached regarding the vacation of premises
(1) Where a debtor has entered into obligation to vacate residential premises in a settlement based on which compulsory enforcement may be pursued, the local court (Amtsgericht, AG) in the district of which the residential premises are located may approve, upon corresponding application being made, a period for clearing the premises that is reasonable under the circumstances. The petition is to be filed at the latest two (2) weeks prior to the day on which the premises are to be vacated pursuant to the settlement; sections 233 to 238 shall apply mutatis mutandis. The decision is delivered by a court order. Prior to the decision, the creditor is to be heard. The court is authorised to deliver the orders designated in section 732 (2).
(2) The period for clearing the premises may be extended or shortened upon corresponding application being made. Subsection (1) second to fifth sentences shall apply mutatis mutandis.
(3) The period for clearing the premises may not amount to more than one (1) year in total, calculated from the day on which the settlement was concluded. If the settlement has stipulated a later date for clearing the premises, the period set therefor shall be calculated from that day onwards.
(4) A complaint subject to a time limit may be lodged against the decision delivered by the local court (Amtsgericht, AG).
(5) Subsections 1 to 4 shall not apply to tenancy relationships governing residential premises in the sense as defined by section 549 (2) number 3, nor do they apply to the cases provided for by section 575 of the Civil Code (Bürgerliches Gesetzbuch, BGB). Should a tenancy relationship in the sense as defined by section 575 of the Civil Code be terminated without prior notice, the period for vacating the premises may be granted at the longest until the time contractually agreed as the end of the tenancy relationship.
Section 795
Application of the general regulations to additional, enforceable legal documents
Unless sections 795a to 800 provide otherwise, the stipulations of sections 724 to 793 shall apply mutatis mutandis to compulsory enforcement based on the enforceable deeds of title mentioned in section 794. Where the enforceable deeds of title are based on judgments that are provisionally enforceable only against provision of security, section 720a shall apply mutatis mutandis to compulsory enforcement based on the enforceable deeds of title mentioned in section 794 (1) number 2. Additionally, sections 1093 to 1096 shall apply to compulsory enforcement based on European orders for payment that have been declared enforceable.
Section 795a
Compulsory enforcement based on a cost-assessment order
Compulsory enforcement based on a cost-assessment order that has been included in the judgment pursuant to section 105 shall be pursued based on an enforceable execution copy of the judgment; no court certificate of enforceability need be issued for the court order assessing the costs.
Section 795b
Declaration of enforceability of the court settlement
In the case of settlements concluded before a German court (section 794 (1) number 1), the effectiveness of which depends exclusively on an event occurring that has been set out in the file on the proceedings, the court certificate of enforceability shall be issued by the records clerk of the court registry of the court of first instance and, where the legal dispute is pending with a court of higher instance, by the records clerk of the registry of that court.
Section 796
Compulsory enforcement based on writs of execution
(1) Writs of execution shall require a court certificate of enforceability only if compulsory enforcement is to be pursued on behalf of another creditor than the one designated in the writ of execution, or against another debtor than the one designated in the writ of execution.
(2) Objections concerning the claim as such shall be admissible only insofar as the grounds on which they are based arose after service of the writ of execution and can no longer be asserted by entering a protest.
(3) That court shall have jurisdiction that would have had jurisdiction for a decision in the litigation for actions brought for the issuance of a court certificate of enforceability, as well as for actions by which objections are asserted that concern the claim as such, or by which the occurrence of the prerequisite for the issuance of the court certificate of enforceability is disputed, which was assumed as having been proven when such court certificate was issued.
Section 796a
Prerequisites for the settlement reached among attorneys to be declared enforceable
(1) A settlement reached by attorneys on behalf of the parties they represent, upon having been correspondingly authorised, shall be declared enforceable, upon corresponding application being made by a party, if the debtor has subjected himself in such settlement to immediate compulsory enforcement and the settlement has been deposited, specifying the date on which it was reached, with a local court (Amtsgericht, AG) in the district of which one of the parties had its general venue at the time the settlement was reached.
(2) Subsection (1) shall not apply should the settlement be directed at the issuance of a declaration of intent or should it concern the existence of a tenancy relationship for residential premises.
(3) The declaration of enforceability shall be refused to be issued if the settlement is invalid or if its recognition would violate public order.
Section 796b
Declaration of enforceability by the court hearing the case
(1) That court as the court hearing the case shall be competent for the declaration of enforceability pursuant to section 796a (1) that would have had jurisdiction for the assertion before the court of the claim to be enforced.
(2) The opponent is to be heard prior to the decision being delivered on the petition for a declaration of enforceability. The decision is delivered by a court order. The decision is incontestable.
Section 796c
Declaration of enforceability by a notary
(1) Furthermore, a notary who has his official residence in the district of a court that has jurisdiction pursuant to section 796a (1) may keep a settlement document safe and declare it enforceable, provided that the parties consent to his doing so. Sections 796a and 796b shall apply mutatis mutandis.
(2) Insofar as the notary refuses to issue a declaration of enforceability, he shall provide the grounds on which his decision is based. Such refusal by the notary may be contested by filing a petition for a court decision to be taken with the court that has jurisdiction pursuant to section 796b (1).
Section 797
Procedure pursued in the case of enforceable records or documents
(1) The enforceable execution copy of court records or documents will be issued by the records clerk of the registry of the court in the safekeeping of which the record or document has remained.
(2) The enforceable execution copy of notarial records or documents will be issued by the notary in whose safekeeping the record or document has remained. Should the record or document have remained in the safekeeping of a public authority, the latter is to issue the enforceable execution copy.
(3) The decision regarding objections that concern the admissibility of the court certificate of enforceability and the admissibility of issuing a further enforceable execution copy will be taken, where court records or documents are involved, by the court in the safekeeping of which the record or document has remained, and, where notarial records or documents are involved, by that local court (Amtsgericht, AG) in the district of which the notary in the safekeeping of whom the record or document has remained has his official residence, or in the district of which the public authority in the safekeeping of which the record or document has remained has its official seat. The decision as to the issuance of a further enforceable execution copy will be taken, where court records or documents are involved, by the court in the safekeeping of which the record or document has remained, and, where notarial records or documents are involved, by the notary in the safekeeping of whom the record or document has remained, or, if the record or document has remained in the safekeeping of a public authority, by that local court (Amtsgericht, AG) in the district of which said public authority has its official seat.
(4) The limiting rule set out in section 767 (2) is not to be applied to the assertion of objections concerning the claim as such.
(5) That court with which the debtor has his general jurisdiction in Germany, and otherwise that court with which an action may be brought against the debtor pursuant to section 23, shall have jurisdiction for actions brought for the issuance of a court certificate of enforceability, or for actions by which the objections concerning the claim as such are asserted, or by which the occurrence of the prerequisite for the issuance of the court certificate of enforceability is disputed.
(6) Subsections (2) to (5) shall apply mutatis mutandis to orders pursuant to section 796c.
Section 797a
Procedure pursued in the case of settlements being reached before a dispute-resolution entity
(1) In the case of settlements having been reached before dispute resolution entities of the type designated in section 794 (1) number 1, the records clerk of the court registry of that local court (Amtsgericht, AG) shall issue the certificate of enforceability in the district of which the dispute-resolution entity has its seat.
(2) The court designated in subsection (1) shall decide on objections concerning the admissibility of a court certificate of enforceability.
(3) Section 797 (5) shall apply mutatis mutandis.
(4) The Land department of justice (Landesjustizverwaltung) may authorise the chairpersons of dispute resolution entities to issue certificates of enforceability for settlements that have been reached before the dispute-resolution entity. This authorisation shall not extend to the cases provided for by section 726 (1), sections 727 to 729, and section 733. The court designated in subsection (1) shall decide on objections concerning the admissibility of a certificate of enforceability.
Section 798
Waiting period
Compulsory enforcement based on a cost-assessment order that has not been set out on the judgment, based on orders pursuant to section 794 (1) number 4b as well as based on the records or documents recorded pursuant to section 794 (1) number 5 may be begun only if the enforceable deed of title has been served at least two (2) weeks previously.
Section 798a
(repealed)
Section 799
Enforceable record or document in the case of legal succession
Insofar as the owner of real estate encumbered by a mortgage, a charge on land, or an annuity charge on land has subjected himself to immediate compulsory enforcement in a record or document recorded pursuant to section 794 (1) number 5, and an enforceable execution copy has been issued to the creditor’s successor in title, then wherever the successor in title has been entered in the land register as creditor, no service need be performed of the public record or document, or publicly certified record or document, that proves the legal succession.
Section 799a
Liability for damages where other creditors are pursuing enforcement based on records or documents
In cases in which the owner of real estate has subjected himself to immediate compulsory enforcement with a view to a mortgage or a charge on land in a record or document recorded pursuant to section 794 (1) number 5, and a creditor other than the creditor designated in the record or document is pursuing the enforcement, then this other creditor shall be under obligation, to the extent the enforcement based on the record or document is declared inadmissible, to compensate the debtor for the damages the latter has suffered by the enforcement based on the record or document, or by his efforts made in order to avert the enforcement. The first sentence shall apply mutatis mutandis where the debtor has subjected himself to immediate enforcement against his property regarding the claims that were secured by the charge on real property, or for the claim based on an acknowledgment of debt serving the same purpose.
Section 800
Enforceable record or document against the respective owner of real estate
(1) The owner may subject himself to immediate compulsory enforcement in a record or document recorded pursuant to section 794 (1) number 5 with a view to a mortgage, a charge on land, or an annuity charge on land in such manner that compulsory enforcement based on the record or document is to be admissible against the respective owner of the real estate. In such event, the subjection to immediate compulsory enforcement must be entered in the land register.
(2) If compulsory enforcement is pursued against a later owner who is entered in the land register, it is not necessary to serve the public record or document, or publicly certified record or document, proving the acquisition of ownership.
(3) Should immediate compulsory enforcement be admissible against the respective owner, that court shall have jurisdiction for the actions designated in section 797 (5) in the district of which the real estate is situate.
Section 800a
Enforceable record or document in the case of a maritime mortgage
(1) The stipulations of sections 799 and 800 shall apply mutatis mutandis to registered ships and ships under construction encumbered by a maritime mortgage.
(2) Where immediate compulsory enforcement against the respective owner is admissible, that court shall have jurisdiction for the actions designated in section 797 (5) in the district of which the register for the ship or the ship under construction is being kept.
Section 801
Legal documents enforceable under Land law
(1) The legislative powers of the Länder are not prevented from admitting the compulsory enforcement by a court based on other enforceable deeds of title than those designated in sections 704 and 794, nor are they prevented from establishing rules in this regard that are in derogation of the present Code as regards compulsory enforcement.
(2) Claims may be enforced based on enforceable deeds of title governed by Land law in the sense as defined by subsection (1) in the entire territory of the Federal Republic of Germany.
Section 802
Exclusive venue
The venues directed in this Book are exclusive.
Chapter 2
Compulsory enforcement for monetary claims
Title 1
General regulations
Section 802a
Principles of enforcement; general powers of the court-appointed enforcement officer
(1) The court-appointed enforcement officer shall work towards ensuring that the recovery of monetary claims is effected promptly, fully, and in a cost-efficient manner.
(2) By reason of the corresponding enforcement instructions and the physical handover of the enforceable execution copy, the court-appointed enforcement officer has the following powers, notwithstanding any further competences he may have:
1. To make efforts at amicably terminating the matter (section 802b),
2. To obtain information from the debtor on his financial circumstances and the assets he owns (section 802c),
3. To obtain information from third parties on the debtor’s financial circumstances and the assets he owns (section 802l),
4. To pursue the attachment and realisation of physical objects,
5. To give notice of imminent attachment of a debt (section 845); this shall not require the prior issuance of an enforceable execution copy, nor shall it require the service of the enforceable deed of title.
The measures are to be designated in the enforcement instructions; however, the measure pursuant to number 1 of the first sentence is to be so designated only if the instructions are limited thereto.
Section 802b
Amicable termination of the matter; deferment of enforcement in the event of a payment agreement
(1) In all situations of the proceedings, the court-appointed enforcement officer is to endeavour to achieve an amicable termination of the matter.
(2) Where the creditor has not ruled out a payment agreement, the court-appointed enforcement officer may grant to the debtor a period within which payment is to be made, or may allow the debt to be redeemed by partial performance (payment in instalments), provided the debtor demonstrates in a satisfactory way that he will be able to make the payments, which are to be determined in terms of their amount and timing. Should a payment plan be determined in accordance with the first sentence, the enforcement shall be deferred. The redemption is to be completed within twelve (12) months.
(3) The court-appointed enforcement officer shall inform the creditor without undue delay of the payment plan determined pursuant to subsection (2) and of the deferment of enforcement. Where the creditor opposes the payment plan without undue delay, the payment plan shall be rendered invalid upon the debtor being notified of this fact; concurrently, the deferment of enforcement shall end. Should the debtor be in arrears for longer than two weeks with a payment determined, in its entirety or with a part of it, this shall have the same effect.
Section 802c
Information from the debtor on his assets
(1) For purposes of enforcing a monetary claim, the debtor is under obligation to provide information to the court-appointed enforcement officer, at the latter’s demand, on his financial circumstances and the assets he owns, subject to the stipulations set out hereinbelow, and to provide his name at birth as well as his date and place of birth. Where the judgment debtor is a legal person or an association of persons, he is to provide the name, the number of the registry folio on which he is entered in the Commercial Register, and his registered seat.
(2) In providing such information, the debtor is to cite all assets belonging to him. Where he lists receivables, the reasons and the evidence proving his claim are to be designated. Furthermore, the debtor is to provide information on the following:
1. The dispositions the debtor has made against payment to a person with whom he has a close relationship (section 138 of the Insolvency Statute (Insolvenzordnung, InsO)) in the course of the last two (2) years prior to the date set out in section 802f (1) and up to the date on which he provided information on his assets;
2. The performance the debtor has made without payment in the last four (4) years prior to the date pursuant to section 802f (1) and up to the date on which he provided information on his assets, provided that this does not concern usual gifts made on certain occasions that are of little value.
Objects that are obviously not subject to attachment pursuant to section 811 (1) nos. 1 and 2 need not be listed unless attachment with substitution is an available option.
(3) The debtor is to record a statutory declaration in lieu of an oath, stating that he has correctly and fully made the statements according to subsections (1) and (2) to the best of his knowledge and belief. The stipulations of sections 478 to 480 and of section 483 shall apply mutatis mutandis.
Section 802d
New information on assets
(1) A debtor who, in the course of the last two years, has provided information on his financial circumstances and the assets he owns pursuant to section 802c of the present Code or pursuant to section 284 of the Fiscal Code (Abgabenordnung, AO) shall be obligated to once again provide such information only if a creditor satisfactorily demonstrates facts allowing the conclusion to be drawn that there has been a significant change to the debtor’s financial circumstances and in the assets he owns. Alternatively, the court-appointed enforcement officer shall forward to the creditor a hard-copy printout of the last schedule of assets that has been provided. The creditor may use the data obtained solely for purposes of enforcement and shall delete the data upon such purpose having been achieved; the enforcement officer is to indicate this fact to the creditor. The enforcement officer shall notify the debtor that a hard-copy printout has been forwarded in accordance with the second sentence and shall instruct him that he may potentially entered in the list of debtors (section 882c).
(2) Instead of having a hard-copy printout forwarded, the creditor may, upon filing a corresponding application, have the schedule of assets transmitted as an electronic document, provided that this has been furnished with a qualified electronic signature and is protected against its becoming known to unauthorised parties.
Section 802e
Competence
(1) The court-appointed enforcement officer of the local court (Amtsgericht, AG) in the district of which the debtor has his place of residence or, absent such place of residence, his place of abode at the time the instructions are issued to the court-appointed enforcement officer, shall be the enforcement officer competent to take the information on the debtor’s financial circumstances and assets and to administer the statutory declaration in lieu of an oath.
(2) Should the court-appointed enforcement officer first contacted not be competent, he shall forward the matter, upon the creditor having filed a corresponding application, to the competent enforcement officer.
Section 802f
Proceedings for taking the information on the debtor’s assets
(1) By way of taking the information on the debtor’s financial circumstances and assets, the court-appointed enforcement officer shall set a deadline of two weeks, within which the debtor is to settle the claim. For the case that the claim has not been fully settled following the expiry of the deadline, the enforcement officer shall concurrently arrange a meeting for a date shortly after expiry of the deadline, on which the information on the debtor’s financial circumstances and assets is to be provided, and shall summon the debtor to his offices for such meeting. The debtor is to produce the documentation required for providing information on his financial circumstances and assets at the meeting.
(2) In derogation from subsection (1), the court-appointed enforcement officer may determine that the debtor is to provide the information on his financial circumstances and assets in his own residence. The debtor may oppose this determination vis-à-vis the enforcement officer, and must do so within one week. In all other cases, the debtor shall be deemed to have failed to appear at the meeting in violation of his obligations should the debtor fail to provide the information on his financial circumstances and assets for reasons for which he is responsible.
(3) The debtor is to be instructed, with the summons to the meeting, regarding the statements to be made pursuant to section 802c (2). The debtor is to be instructed as regards his rights and obligations pursuant to subsections (1) and (2), regarding the consequences of a failure to appear at the meeting without excuse, or regarding a violation of his obligation to provide information, and about the possibility of information being obtained from third parties pursuant to section 802l as well as his potential entry in the list of debtors upon his providing information on his assets pursuant to section 882c.
(4) Demands for payment, summonses, determinations, and instructions pursuant to subsections (1) through (3) are to be served on the debtor, even in those cases in which the debtor has retained an attorney of record; no notice need be sent to the attorney of record. The appointed date as determined by the court shall be communicated to the creditor subject to the stipulations of section 357 (2).
(5) The court-appointed enforcement officer shall prepare a list containing the statements required pursuant to section 802c subsections (1) and (2) (schedule of assets), this being an electronic document. These statements are to be read to the debtor prior to his recording the declaration pursuant to section 802c (3), or they are to be reproduced on a screen for his inspection. Should the debtor so demand, a hard-copy printout shall be issued to him.
(6) The court-appointed enforcement officer shall lodge the schedule of assets with the central court responsible for execution pursuant to section 802k (1) and shall forward a hard-copy printout to the creditor without undue delay. The hard-copy printout must contain the note that it corresponds to the content set out in the schedule of assets; section 802d subsection (1), third sentence, and subsection (2) shall apply mutatis mutandis.
Section 802g
Coercive detention
(1) Should the creditor file a corresponding application, the court shall issue a warrant of arrest against a debtor who has failed to appear at the meeting scheduled for the provision of the information on his financial circumstances and assets without having excused himself, or who refuses to provide the information on his financial circumstances and assets pursuant to section 802c without citing any grounds, in order to force the debtor to provide such information. The warrant for arrest is to designate the creditor, the debtor, and the grounds for the arrest. The warrant for arrest need not be served prior to being executed.
(2) The debtor shall be arrested by a court-appointed enforcement officer. A certified copy of the warrant for arrest is to be physically submitted to the debtor at the time of his arrest.
Section 802h
Inadmissibility of the execution of the arrest
(1) The execution of the warrant for arrest is not an available remedy if two (2) years have lapsed since the date on which the warrant for arrest was issued by the court.
(2) Any arrest ordered against a debtor whose health would be subjected to an imminent and significant risk by an execution of the arrest may not be executed for as long as this state of the debtor’s health continues.
Section 802i
Information on the assets of a debtor in arrest
(1) A debtor who has been arrested may demand at any time that the court-appointed enforcement officer of the local court (Amtsgericht, AG), in the district of which he is being detained, take the information on his financial circumstances and assets. This demand is to be complied with without undue delay; section 802f (5) shall apply mutatis mutandis. Should the creditor file a corresponding application, his attendance shall be enabled, provided that his attendance does not result in delaying the taking of the information.
(2) After the debtor has provided the information on his assets, he shall be released from detention. Section 802f subsections (5) and (6) shall apply mutatis mutandis.
(3) Should the debtor be unable to make complete statements because he does not have the required documents at hand, the court-appointed enforcement officer may appoint a new date and may suspend the execution of the warrant for arrest until that time. Section 802f shall apply mutatis mutandis; no deadline for payment need be set.
Section 802j
Duration of arrest, renewed arrest
(1) The arrest may not be ordered for a period longer than six (6) months. Following expiry of the six (6) months, the debtor shall be released from arrest ex officio.
(2) Where a debtor is released from arrest upon the creditor having filed a corresponding petition, without the debtor having contributed to this, no renewed arrest shall be ordered against the debtor if the same creditor files a corresponding application.
(3) If an arrest of six (6) months has been executed against a debtor due to his refusal to provide the information on his financial circumstances and assets, the provision of such information on his financial circumstances and assets may be imposed on him by ordering an arrest in the course of the subsequent two (2) years only subject to the pre-requisites of section 802d, even if a corresponding petition is filed by another creditor.
Section 802k
Central administration of schedules of assets
(1) Schedules of assets that are to be deposited pursuant to section 802f (6) of this Act or pursuant to section 284 (7), fourth sentence, of the Fiscal Code (Abgabenordnung, AO) shall be maintained in electronic form in each Land by a central execution court. It is possible to inspect the schedules of assets via a central, internet-based search in all databases of the Länder, and to retrieve such schedules of assets. The same applies to schedules of assets that were established based on a provision of federal or Land law equivalent to section 284 subsections (1) to (7) of the Fiscal Code, insofar as this provision orders their deposit. A schedule of assets according to the first sentence or second sentence is to be deleted upon the expiry of two (2) years from the date on which the information was provided, or upon the receipt of a new schedule of assets.
(2) The court-appointed enforcement officers may retrieve copies of the schedules of assets maintained by the central execution courts pursuant to subsection (1) for purposes of execution. Those enforcement authorities shall be equivalent to court-appointed enforcement officers that
1. May demand information on assets owned pursuant to section 284 of the Fiscal Code (Abgabenordnung, AO),
2. Are authorised by federal or Land law to demand that the debtor provide information on the assets he owns, where this authority to obtain information has been ruled out by the establishment of a schedule of assets to be deposited pursuant to subsection (1), or
3. Are authorised by federal or Land law to demand that the debtor provide information to the court-appointed enforcement officer on the assets he owns pursuant to section 802c.
Furthermore, the courts responsible for execution, insolvency courts, and courts maintaining registers as well as the law enforcement agencies are authorised to inspect these schedules to the extent required by the fulfilment of the tasks incumbent on them.
(3) The Land governments shall determine by statutory instrument which court is to perform the tasks of the central execution court pursuant to subsection (1). They may confer this authority upon the Land departments of justice. The central execution court pursuant to subsection (1) may have other agencies perform the data processing on its behalf; the respectively applicable stipulations of data protection law concerning the processing of personal data on behalf of others are to be applied.
(4) The Federal Ministry of Justice is authorised to provide for the details of the content, form, recording, transmission, maintenance, and deletion of the schedules of assets pursuant to section 802f (5) of this Act and pursuant to section 284 subsection (7) of the Fiscal Code (Abgabenordnung, AO) or equivalent provisions in the sense of subsection (1), second sentence, and also for the details of the inspection, in particular by automated retrieval processes, such provision being subject to approval by the Bundesrat and being made by statutory instrument. The statutory instrument is to establish suitable rules for safeguarding data protection and data security. In particular, it is to be ensured that the schedules of assets:
1. Are protected against unauthorised third parties obtaining knowledge in the course of their being transmitted to the central execution court pursuant to subsection (1), as well as during the transfer to the other agencies pursuant to subsection (3), third sentence;
2. Are reproduced as a whole and completely;
3. May be allocated at any time to their source; and
4. May be retrieved only by registered users, with every retrieval being recorded.
Section 802l
Information rights of the court-appointed enforcement officer
(1) Where the debtor does not comply with his obligation to provide information on his financial circumstances and the assets he owns, or if it is foreseeable that the enforcement against the assets listed therein will not achieve the full satisfaction of the creditor, the court-appointed enforcement officer may
1. Obtain from the statutory pension insurance funds the name, the first names, or the company name of the debtor, as well as the addresses of the current employers in whose services the debtor is working under an employment relationship entailing the obligation to make compulsory social insurance contributions;
2. Request that the Federal Central Tax Office (Bundeszentralamt für Steuern) retrieve the data designated in Section 93b (1) of the Fiscal Code (Abgabenordnung, AO) from credit institutions (section 93 (8) of the Fiscal Code);
3. Obtain from the Federal Motor Transport Authority (Kraftfahrtbundesamt) the data on the vehicle and the vehicle keeper pursuant to section 33 (1) of the Road Traffic Act (Strassenverkehrsgesetz, StVG) for any vehicle regarding which the debtor has been entered as the vehicle keeper.
Obtaining or requesting information and data shall be permissible only insofar as this is required for enforcement purposes and the claims to be enforced amount to at least 500 euros; the costs of compulsory enforcement and ancillary claims shall be included in computing this amount only if they alone are the subject matter of the enforcement instructions.
(2) The court-appointed enforcement officer shall delete or block, without undue delay, any data not required for enforcement purposes. A record is to be prepared of the deletion.
(3) The court-appointed enforcement officer shall inform the creditor without undue delay of the results of his efforts at obtaining data or of his request pursuant to subsection (1), observing the stipulations of subsection (2), and shall inform the debtor within four (4) weeks of receiving such data. Section 802d subsection (1), third sentence, and subsection (2) shall apply mutatis mutandis.
Title 2
Compulsory enforcement against movable property
Subtitle 1
General regulations
Section 803
Attachment
(1) Compulsory enforcement against movable property is effected by attachment. It may not be extended beyond what is required to satisfy the creditor and to cover the costs of compulsory enforcement.
(2) No attachment shall be effected if it is not to be expected that the realisation of the objects to be attached will not achieve any surplus in excess of the costs of compulsory enforcement.
Section 804
Security right of a creditor
(1) By the attachment, the creditor acquires a security right to the object so attached.
(2) The security right grants the same rights to the creditor, in his relationship to other creditors, as are entailed by pledged collateral acquired by way of an agreement; the security right takes precedence before rights of pledge and preferential rights, which shall not have equivalent status with pledged collateral in the event of insolvency proceedings being opened.
(3) Any security right established by an earlier attachment shall take precedence before a security right established by a subsequent attachment.
Section 805
Action for preferential satisfaction
(1) A third party may not oppose the attachment of an object, should that third party not have possession of that object, based on a security right or preferential right; however, it may assert its claim for preferential satisfaction out of the proceeds by filing a corresponding court action, and may do so without considering the fact whether or not its claim is due for payment.
(2) The action is to be filed with the court responsible for execution and, where the local courts (Amtsgerichte, AG) do not have jurisdiction for the subject matter of the litigation, the action is to be filed with the regional court (Landgericht, LG) in the district of which the execution court has its seat.
(3) Should the action be directed against both the creditor and the debtor, they are to be regarded as joined parties.
(4) Provided the claim has been demonstrated to the satisfaction of the court, the court is to order the lodgment of the proceeds. In this context, the stipulations of sections 769 and 770 shall apply mutatis mutandis.
Section 806
No warranty where an attached object is disposed of
Where an object is disposed of based on the attachment, the party acquiring that object shall have no claim to warranty for any defects of title or any material defect of the object being disposed of.
Section 806a
Notices from the court-appointed enforcement officer and interviews
(1) If the court-appointed enforcement officer becomes aware, on the occasion of the compulsory enforcement, in the course of interviewing the debtor or as a result of his inspection of the documents, that the debtor has monetary claims against third parties, and if it is not possible to effect attachment, or if it is foreseeable that the attachment so effected will not achieve the full satisfaction of the creditor, he shall inform the creditor of the names and addresses of the third-party debtors, providing the basis for the claims and the securities established for them.
(2) If the court-appointed enforcement officer does not find the debtor at his residence and if it is not possible to effect attachment, or if it is foreseeable that the attachment so effected will not achieve the full satisfaction of the creditor, he may make inquiries with the adult persons belonging to the debtor’s household regarding the debtor’s employer. Said persons are not under obligation to provide this information, and the court-appointed enforcement officer is to draw their attention to the fact that this information is voluntary. The court-appointed enforcement officer shall inform the creditor of the insights he has gained.
Section 806b
(repealed)
Section 807
Taking the information on the debtor’s financial circumstances and assets following efforts to attach assets
(1) Where the creditor has applied to have assets of the debtor attached and
1. The debtor has refused to consent to the search (section 758) or
2. The efforts to attach assets have obtained the result that the attachment foreseeably will not achieve the full satisfaction of the creditor,
the court-appointed enforcement officer may, in derogation from the stipulations of section 802f, take the information on the debtor’s financial circumstances and assets immediately, should the creditor have filed a corresponding application. Section 802f subsections (5) and (6) shall apply.
(2) The debtor may oppose the immediate taking of information. In such event, the court-appointed enforcement officer shall proceed pursuant to section 802f; no deadline for payment need be set.
Subtitle 2
Compulsory enforcement against physical objects
Section 808
Attachment with the debtor
(1) The attachment of the physical objects in the custody and control of the debtor is effected by the court-appointed enforcement officer taking possession of them.
(2) Objects other than money, valuables, and securities are to be left in the custody and control of the debtor unless doing so jeopardises the satisfaction of the creditor. Should the objects be left in the custody and control of the debtor, their attachment will be valid only if it is made visible by applying seals or using other means.
(3) The court-appointed enforcement officer is to inform the debtor of the attachment having been effected.
Section 809
Attachment with the creditor or with third parties
The above rules shall apply mutatis mutandis to the attachment of objects in the custody and control of the creditor or of a third party who is prepared to surrender them.
Section 810
Attachment of unharvested fruits
(1) Fruits that have not yet been harvested may be attached as long as their attachment has not been effected by way of compulsory enforcement against immovable assets. The attachment may not be effected earlier than one (1) month prior to the time at which the fruit is usually ripe.
(2) A creditor entitled to satisfaction out of the plot of real estate may oppose the attachment subject to the provisions of section 771 unless the attachment has been effected for a claim taking precedence in the compulsory enforcement effected against the plot of real estate.
Section 811
Objects exempted from attachment
(1) The following objects are not subject to attachment:
1. Objects serving the debtor’s personal use or his household, in particular items of clothing, linen goods, beds, household and kitchen appliances insofar as the debtor requires them for a modest lifestyle and housekeeping needs in line with his professional activities and his indebtedness; furthermore: summer houses, garden houses, and similar facilities serving residential purposes that are subject to compulsory enforcement against movable property and that the debtor or his family require as permanent residential accommodations;
2. The foodstuff, fuel for heating and cooking, and lighting means required for four (4) weeks by the debtor, his family, the members of his household serving as household help or, to the extent no such supplies are given for this period of time and their procurement by other means is not assured, the amount of money required to so procure them;
3. Small animals in a limited number as well as one (1) dairy cow or, at the selection of the debtor, instead of the dairy cow a total of two (2) pigs, goats, or sheep if these animals are required for the nourishment of the debtor, his family, the members of his household serving as household help, in his agricultural business or in his commercial business; furthermore the supplies required for four (4) weeks of feedstuffs and bedding or, to the extent no such supplies are given for this period of time and their procurement by other means is not assured, the amount of money required to so procure them;
4. Where the debtor operates an agricultural business: the equipment and livestock required for the business operation, as well as the necessary fertiliser and the agricultural products to the extent they are required to secure the maintenance of the debtor, his family, and his employees, or to maintain the agricultural business until the next harvest of the same or similar products;
4a. Where the debtor is an employee in an agricultural business: the goods delivered to him as remuneration in kind, to the extent the debtor requires them in order to maintain himself and his family;
5. Where the debtor earns his maintenance using his intellectual or physical capacities or other personal performance: the objects required to continue pursuing these economic activities;
6. Concerning the widows and heirs of the persons designated in number 5 above, provided they continue to pursue the economic activities on their own account by a representative: the objects required to continue pursuing these economic activities;
7. Service clothing and service equipment insofar as they are determined for use by the debtors; where civil servants, clerics, attorneys, notaries, medical practitioners, and midwives are concerned: the objects they require to pursue their profession including appropriate clothing;
8. Where the debtor draws recurrent earnings of the type designated in sections 850 to 850b of the present Code or in section 54 subsections (3) to (5) of the First Book of the Social Code (Sozialgesetzbuch), or where the debtor draws ongoing child benefits: an amount of money corresponding to the part of the earnings that is not subject to attachment for the time from the attachment until the next payment date;
9. The appliances, containers, and goods indispensable for operating a pharmacy;
10. The books determined for the debtor’s use and that of his family in church or in school or in any other institution of instruction, or for home devotionals;
11. The household records and business account ledgers, family papers as well as any wedding bands, decorations, and badges of honour;
12. Artificial limbs, glasses and other aids necessary to alleviate physical handicaps insofar as these objects are intended for use by the debtor and his family;
13. The objects determined for direct use at an interment.
(2) An object designated in subsection (1) numbers 1, 4, 5 to 7 may be attached where the seller enforces his monetary claim under the sale that has been secured by a reservation of title. Proof of the reservation of title having been agreed is to be provided by records or documents.
Section 811a
Attachment with substitution
(1) An object exempted from attachment pursuant to section 811 (1) numbers 1, 5 and 6 may admissibly be attached notwithstanding its exemption if, prior to taking the object, the creditor permits the debtor to use a replacement object serving the purpose protected by the exemption, or gives him the amount of money required to procure such replacement; should it not be possible for the creditor to obtain such replacement in due time, or where this cannot be reasonably expected of him, the attachment may be admitted subject to the proviso that the debtor is given the amount of money required to procure the replacement out of the proceeds of the execution (attachment with substitution).
(2) The court responsible for execution shall decide by court order on the admissibility of the attachment with substitution, upon the creditor filing a corresponding petition. The court is to admit such attachment with substitution only if this is reasonable under the circumstances given at that time, and in particular if it is to be expected that the proceeds of the execution will be significantly higher than the value of the replacement object. The court shall assess the value of a replacement object offered by the creditor or the amount of money required to obtain such replacement. In the case of attachment with substitution being performed pursuant to subsection (1), first clause of the sentence, the amount assessed is to be reimbursed to the creditor out of the proceeds of the execution; this shall form part of the costs of compulsory enforcement.
(3) The amount of money given to the debtor is exempted from attachment.
(4) In the case of attachment with substitution being effected pursuant to subsection (1), second clause of the sentence, the object attached may be taken only after the court order admitting it has become final and binding.
Section 811b
Provisional attachment with substitution
(1) Insofar as no prior decision of the court has been given, a provisional attachment with substitution may admissibly be effected, provided the court can be expected to admit such provisional attachment with substitution. The court-appointed enforcement officer is to effect the attachment with substitution only if it can be expected that the proceeds of the execution will be significantly higher than the value of the replacement object.
(2) The attachment is to be released if the creditor has filed a petition pursuant to section 811a (2) with the court responsible for execution, within a period of two (2) weeks after having been notified of the attachment, or if such petition has been dismissed in a final and binding judgment.
(3) The notice to the creditor is to inform him that the attachment was effected as attachment with substitution and is to set out the period within which the application is to be filed, while also setting out the consequences of any failure to comply with it.
(4) The physical submission of the replacement object to the debtor, or of the amount of money required to procure it, and the continuation of compulsory enforcement shall be effected at the creditor’s instructions only upon the order pursuant to section 811a (2) having been delivered. Section 811a subsection (4) shall apply mutatis mutandis.
Section 811c
Domestic animals exempted from attachment
(1) Animals kept in a residential area that do not serve any economic purpose are not subject to attachment.
(2) Upon a corresponding petition being filed by the creditor, the court responsible for execution shall allow an animal to be attached in light of its great value if exempting it from attachment would entail a hardship for the creditor that is not justifiable, also taking account of the concerns of the protection of animals and the debtor’s justified interests.
Section 811d
Temporary attachment (without actual possession being taken)
(1) If it is to be expected that an object will become attachable in the near future, it may be attached, while, however, being left in the debtor’s custody and control. The enforcement may be continued only where the object has become attachable.
(2) The attachment is to be released should the object have failed to become attachable within one (1) year.
Section 812
Attachment of household effects
Objects forming part of the customary household effects that are in use in the debtor’s household shall not be attached if their realisation would manifestly obtain proceeds that bear no relation whatsoever to the objects’ actual value.
Section 813
Appraisal
(1) The objects attached are to be appraised regarding their usual market value. Valuables are to be appraised by an expert. The court responsible for execution may direct that an expert perform the appraisal also in other cases, provided that a corresponding petition is filed by the creditor or by the debtor.
(2) If it is not possible to appraise the value of the objects attached, this is to be performed retroactively without undue delay, and the result obtained is to be recorded retroactively in the attachment record. Should the court-appointed enforcement officer keep his files electronically, the result is to be recorded in a separate electronic document. The document is to be joined to the attachment record such that it cannot be separated.
(3) Where it is to be assumed that the value of the objects to be attached will be higher than 500 euros, an agricultural expert is to be involved in the attachment of fruits that have not yet been harvested, and likewise where objects of the type designated in section 811 (1) number 4 are to be attached from persons operating an agricultural business.
(4) The Land department of justice (Landesjustizverwaltung) may determine that an expert is to be involved also in other cases.
Section 813a
(repealed)
Section 813b
(repealed)
Section 814
Sale at public auction
(1) The court-appointed enforcement officer is to offer the objects attached for sale at public auction; valuables are to be appraised by an expert prior to the auction.
(2) At the election of the court-appointed enforcement officer, the public auction may be effected as:
1. An auction on site; or
2. As a generally accessible auction in the internet using an auction platform.
(3) Where internet auctions pursuant to subsection (2) number 2 are concerned, the Land governments shall determine by statutory instrument:
1. The time following which the implementation of such auction is admissible;
2. The auction platform;
3. The registration of bidders for the auction, or the refusal to so register them; insofar as the registration of a bidder or the refusal to register him for an auction is based on the requirement that natural persons prove their identity; the use of the electronic identification document (section 18 of the Act on Identity Cards (Personalausweisgesetz, PAuswG)) is to be allowed for this purpose at the latest from 1 January 2013;
4. Commencement, end, and termination of the auction;
5. The auction terms and the other legal consequences of the auction, including instructions to the bidders as to the exclusion of warranty pursuant to section 806;
6. The anonymisation of the debtor’s personal information prior to their being published, and the option to so anonymise the bidders’ personal data;
7. Any other special procedures to be followed.
They may confer the authorisation by statutory instrument upon the Land departments of justice (Landesjustizverwaltungen).
Section 815
Attached cash
(1) Any attached cash is to be surrendered to the creditor.
(2) Should it be demonstrated to the satisfaction of the court-appointed enforcement officer that a third party has rights to the attached cash that prevent its being disposed over, the cash is to be lodged. Compulsory enforcement is to be continued unless a decision is delivered, within a period of two (2) weeks from the date of the attachment, by the court having jurisdiction pursuant to section 771 (1), ordering the termination of compulsory enforcement.
(3) Where the court-appointed enforcement officer takes away the cash from the debtor, this shall be deemed to be payment by the debtor unless such cash is to be lodged pursuant to subsection (2) or pursuant to section 720.
Section 816
Time and place of the auction
(1) The sale at auction of the objects attached may not be effected prior to the expiry of one (1) week from the date of attachment unless the creditor and the debtor agree on an earlier auction, or unless such earlier auction is required in order to avert the risk of the object to be sold at auction undergoing a significant loss in value, or in order to avoid any disproportionate costs entailed by longer storage.
(2) The object shall be sold at auction in the municipality in which it was attached, or at another location in the judicial district of the court responsible for execution, unless the creditor and the debtor agree on a third location.
(3) The public notice of the time and place of the auction is to include a general designation of the objects to be sold at auction.
(4) The rule set out in section 1239 (1), first sentence, of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall apply mutatis mutandis to the sale at auction; section 1239 (2) of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall likewise apply mutatis mutandis to the sale at auction performed on site.
(5) Subsections (2) and (3) shall not apply to internet auctions.
Section 817
Successful bids and delivery
(1) If the auction is performed on site, the object shall go to the highest bidder after having been called three times. Should the object be auctioned off in the internet, the winning bidder shall be that person who has made the highest bid at the time at which the auction ends, this being at least the minimum bid that is to be attained pursuant to section 817a (1), first sentence; that person shall be notified that he has won the auction. Section 156 of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall apply mutatis mutandis.
(2) The object so acquired may be delivered to the successful bidder only if the purchase money has been paid, or if it is paid at the time of delivery.
(3) If the highest bidder has failed to demand the delivery of the object against payment of the purchase money within the period determined in the auction rules, or, absent such rules, prior to the end of the auction on that date, the object shall be auctioned off otherwise. The highest bidder shall not be admitted to make another offer; he shall be liable for any shortfall and shall not be entitled to any surplus proceeds.
(4) Where the creditor is the winning bidder, he shall be released from making payment in cash insofar as the proceeds are to be used, after deduction of the costs of compulsory enforcement, to satisfy his claim, unless the debtor has been permitted to avert enforcement by providing security or by lodgment. To the extent the creditor is released from the obligation to make payment in cash, the amount shall be deemed to have been paid by the debtor to the creditor.
Section 817a
Minimum bid
(1) The object being sold at auction may go only to the bidder whose bid came in at at least half the usual market value of the object (minimum bid). The usual market value and the minimum bid are to be announced while the object is being offered for bid.
(2) Should the object not be sold because the bids made are lower than the minimum set, the creditor’s security right shall continue in force. He may petition at any time that a new date be scheduled for an auction, or may petition that the court order another form of realising the attached object pursuant to section 825. If another form of realisation is directed, subsection (1) shall apply mutatis mutandis.
(3) Objects made of gold or silver may not be sold to a bidder bidding less than the value of the material of the gold or silver object. Where no bid is made that would allow the object to be sold, the court-appointed enforcement officer may conclude a private sale at the price that is equivalent to the value of the gold or silver, but not lower than half the usual market value.
Section 818
Discontinuation of the auction
The auction will be closed as soon as the proceeds suffice to satisfy the creditor and to cover the costs of compulsory enforcement.
Section 819
Effect of accepting the proceeds
The possession taken by the court-appointed enforcement officer of the proceeds shall be deemed to be a payment made by the debtor unless the debtor has been permitted to avert the enforcement by providing security or lodgment.
Section 820
(repealed)
Section 821
Realisation of securities
If attached securities have an exchange price or market price, they are to be sold by the court-appointed enforcement officer directly concluding a direct sale at the then current price and, where they do not have such a price, they are to be auctioned off in accordance with the general provisions.
Section 822
Transfer of registered securities
Should securities be made out to bearers, the court responsible for execution may authorise the enforcement officer to have the securities made out in the name of the buyer and to make the declarations required in this regard in the debtor’s stead.
Section 823
Bearer instruments that are withdrawn from circulation
If a bearer instrument is withdrawn from circulation by being registered in a particular name, or in any other way, the court responsible for execution may authorise the enforcement officer to obtain their return to circulation and to make the declarations required in this regard in the debtor’s stead.
Section 824
Realisation of fruits that have not yet been harvested
Fruits that have been attached but have not yet been harvested may be sold at auction only after they have become ready for harvest (ripe). The auction may be implemented before or after the fruits have been harvested; in the latter case, the court-appointed enforcement officer is to have the harvest performed.
Section 825
Other form of realisation
(1) Upon the creditor or the debtor filing a corresponding petition, the court-appointed enforcement officer may realise an attached object in another manner or at another location than has been determined in the above sections. The court-appointed enforcement officer is to inform the respondent of the realisation intended. He may not realise the object prior to the expiry of two (2) weeks following the service of the information notice unless the respondent has agreed to this being done.
(2) Upon the creditor or the debtor filing a corresponding petition, the court responsible for execution may direct an attached object to be sold at auction by another person than the court-appointed enforcement officer.
Section 826
Subordinate attachment
(1) In order to attach objects that have already been attached, it shall suffice to record the declaration by the court-appointed enforcement officer that he is attaching the objects on behalf of his principal.
(2) Where the first attachment has been performed by a different court-appointed enforcement officer, a copy of the record is to be sent to him.
(3) The debtor is to be informed of the further attachments.
Section 827
Procedure pursued in the case of several attachments
(1) By law, the tasks conferred on the second creditor shall devolve to the court-appointed enforcement officer who has effected the first attachment unless the court responsible for execution instructs, upon a corresponding petition being filed by a creditor or by the debtor, that the tasks of that first enforcement officer are to be assumed by a different enforcement officer. The sale at auction shall be performed on behalf of all creditors involved.
(2) Insofar as the proceeds obtained do not suffice to cover the claims, and the creditor on whose behalf the second or a later attachment was performed demands that such proceeds be distributed differently than in the sequence in which the attachments were made, without the other creditors involved consenting to this, the court-appointed enforcement officer is to notify the execution court of the overall factual situation and is to lodge the proceeds obtained. The documents relevant to the proceedings are to be attached to this notification.
(3) Where the attachment was performed for several creditors simultaneously, the same procedure is to be followed.
Subtitle 3
Compulsory enforcement against claims and other property rights
Section 828
Jurisdiction of the execution court
(1) The court responsible for execution shall take the court actions that concern compulsory enforcement against claims and other property rights.
(2) The execution court shall be that local court (Amtsgericht, AG) with which the debtor has his general venue in Germany, and in all other cases the local court with which an action may be filed against the debtor pursuant to section 23.
(3) If the court before which the action has initially been brought does not have jurisdiction, it shall relinquish jurisdiction to the competent court upon the creditor filing a corresponding petition. The relinquishment shall not be binding upon that court.
Section 829
Attachment of a monetary claim
(1) In cases in which a monetary claim is to be attached, the court is to prohibit the third-party debtor from making payment to the debtor. Concurrently, the court is to issue an order to the debtor that he is to refrain from any disposition over the claim, in particular its collection. The attachment of several monetary claims against various third-party debtors is to be ordered by a uniform court order, upon the creditor filing a corresponding petition, provided that this appears to be mandated for the enforcement purpose and further provided that there is no reason to assume that interests warranting protection of the third-party debtor would contravene this.
(2) The creditor is to have the court order served on the third-party debtor. The court-appointed enforcement officer is to immediately serve the order, together with a copy of the record of service, on the debtor, unless service by publication is required. Where a debtor is located abroad, the order shall not be served and instead shall be mailed.
(3) Upon the order being served on the third-party debtor, the attachment is to be deemed as having been effected.
(4) The Federal Ministry of Justice is authorised to introduce forms serving the petition for the court to issue an order of attachment and transfer, such forms being subject to approval by the Bundesrat and being made by statutory instrument. To the extent forms have been introduced in accordance with the first sentence, the petitioner must use them. Different types of forms may be introduced for proceedings before courts that process these matters electronically, and for proceedings before courts that do not process these matters electronically.