Upon the debtor filing a corresponding petition, the court responsible for execution may order that the credit balance on the account exempted from attachment not be subject to attachment for a term of up to twelve (12) months if the debtor proves that, in the six (6) months preceding the date on which he filed the petition, the vast majority of the amounts credited to the said account were non-attachable amounts, and if the debtor demonstrates to the satisfaction of the court that it can be expected that the vast majority of the amounts to be credited to the account in the coming twelve (12) months likewise will be non-attachable amounts. The court may refuse to issue this order if this is contravened by overriding interests of the creditor. The order is to be reversed, upon a creditor filing the corresponding petition, if the pre-requisites therefor are no longer given, or if the order is contravened by the creditor’s overriding interests.
Section 851
Non-transferable claims
(1) Where no special rules exist, a claim shall be liable to attachment only insofar as it is transferable.
(2) A claim that is not transferable pursuant to section 399 of the Civil Code (Bürgerliches Gesetzbuch, BGB) may be attached and transferred for collection insofar as the object owed is liable to attachment.
Section 851a
Exemption from attachment for farmers
(1) The attachment of claims, to which a debtor operating an agricultural operation is entitled for the sale of agricultural products, is to be vacated by the court responsible for execution, upon the debtor having filed a corresponding petition, insofar as the earnings are indispensible for the maintenance of the debtor, his family and employees, or in order to maintain a proper administration of his operation.
(2) No attachment shall be performed in cases in which it is obvious that the prerequisites for repealing compulsory enforcement pursuant to subsection (1) are given.
Section 851b
Exemption from attachment in the case of rents under tenancy and lease agreements
(1) Upon the debtor filing a corresponding petition, the attachment of rents paid under tenancy and lease agreements is to be vacated by the court responsible for execution insofar as these earnings are indispensible for the debtor to maintain the property, to perform the necessary upkeep work and to satisfy claims that would take precedence, in the event of compulsory enforcement being effected against the property, before the creditor’s claim pursuant to section 10 of the Act on Enforced Auctions and Receivership (Gesetz über die Zwangsversteigerung und die Zwangsverwaltung). The same shall apply to the attachment of cash funds and credit balances resulting from rent payments made under tenancy and lease agreements that are indispensible for the purposes designated in the first sentence.
(2) Should the petition not have been filed within a period of two (2) weeks, it shall be dismissed without having been reviewed on its merits in those cases in which the execution court is convinced that the debtor failed to file the petition earlier with the intention of protracting the proceedings or due to his gross negligence. The period shall commence with the attachment.
(3) Orders pursuant to subsection (1) may be issued in several instances and, insofar as this is mandated under the circumstances given at that time, they may be reversed or modified upon corresponding application being made.
(4) The creditor is to be heard prior to the decisions designated in subsections (1) and (3) being delivered, insofar as this is possible without any significant delays. The factual circumstances that are relevant to the decision are to be demonstrated to the satisfaction of the court. No attachment shall be made if it is obvious that the prerequisites for repealing a compulsory enforcement pursuant to subsection (1) are given.
Section 851c
Exemption from attachment in the case of old-age pensions
(1) Claims to payments made on the basis of agreements may be attached like earned income only if:
1. The payment is made at regular intervals on a life-long basis, but not prior to the recipient’s 60th birthday, or only upon the occurrence of occupational disability;
2. The claims under the agreement may not be disposed of;
3. The determination of third parties as beneficiaries is ruled out, to the exception of surviving dependents or beneficiaries; and
4. No payment of a capital lump sum was agreed, except as death benefits.
(2) In order to enable the debtor to provide for his old age within reasonable bounds, he may accumulate a determined amount that is exempted from attachment, on the basis of an agreement designated in subsection (1), up to a total of 256,000 euros, such accumulation being scaled in accordance with his age in life and taking account of the developments on the capital market, the mortality risk, and the amount of the attachment-exempt threshold. The debtor may accumulate, from when he is 18 years of age until his 29th birthday: 2,000 euros per year, from when he is 30 year of age until his 39th birthday: 4,000 euros per year, from when he is 40 years of age until his 47th birthday: 4,500 euros per year, from when he is 48 years of age until his 53rd birthday: 6,000 euros per year, from when he is 54 years old until his 59th birthday: 8,000 euros per year, and from when he is 60 years old until his 67th birthday: 9,000 euros per year. Where the surrender value of the old-age provisions exceeds the amount that is exempted from attachment, three tenths of the surplus amount shall be exempted from attachment. The third sentence shall not apply to the part of the surrender value that is in excess of the amount set out in the first sentence, multiplied by a factor of three (3).
(3) Section 850e numbers 2 and 2a shall apply mutatis mutandis.
Section 851d
Exemption from attachment in the case of retirement assets subsidised by tax credits
Monthly payments made in the form of a life-long pension, or monthly instalments paid out, in the context of a withdrawal plan pursuant to section 1 (1), first sentence, number 4 of the Act Governing the Certification of Agreements for Old-Age Provisions (Altersvorsorgeverträge-Zertifizierungsgesetz), from retirement assets subsidised by tax credits are attachable as if they were earned income.
Section 852
Claims attachable subject to restrictions
(1) The claim to a compulsory portion of an estate shall be liable to attachment only if it has been acknowledged by contract or if it has become lis pendens.
(2) The same shall apply to the claim to which a donor is entitled pursuant to section 528 of the Civil Code (Bürgerliches Gesetzbuch, BGB) to surrender of the gift, and likewise to the claim of a spouse to the equalisation of accrued gains.
Section 853
Several attachments of a monetary claim
Should a monetary claim have been attached for a plurality of creditors, the third-party debtor shall be entitled and, at the request of a creditor to whom the claim was transferred, the third-party debtor shall be obligated to lodge the amount owed, giving notice of the overall factual situation and making physical delivery of the orders served on him to the local court (Amtsgericht, AG), the order of which was first served on him.
Section 854
Several attachments of a claim to movable assets
(1) If a claim concerning a movable asset of a physical nature has been attached for a plurality of creditors, the third-party debtor shall be entitled and, at the request of a creditor to whom the claim was transferred, the third-party debtor shall be obligated to surrender the asset, giving notice of the overall factual situation and making physical delivery of the orders served on him to the court-appointed enforcement officer who, according to the order first served on the debtor, is authorised to take possession of the asset. Should the creditor not have designated such a court-appointed enforcement officer, the enforcement officer shall be appointed, upon corresponding application being made by the third-party debtor, by the local court (Amtsgericht, AG) in the district of which the asset that is to be surrendered is located.
(2) If the proceeds obtained do not suffice to cover the claims and if the creditor on whose behalf the second or a later attachment was performed demands that they 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 local court (Amtsgericht, AG), whose order was first served on the third-party debtor of the overall factual situation, and is to lodge the proceeds. The documents relevant to the proceedings are to be attached to this notification.
(3) Should the attachment have been performed for several creditors simultaneously, the same procedure is to be followed.
Section 855
Several attachments of a claim to immovable property
Where the claim concerns immovable property, the third-party debtor shall be entitled and, should a creditor to whom the claim has been transferred so demand, the third-party debtor shall be obligated to surrender the property, giving notice of the overall factual situation and making physical delivery of the orders served on him to the sequestrator appointed by the local court (Amtsgericht, AG) in the district of which the property is situate, or to the sequestrator appointed as per the petition filed.
Section 855a
Several attachments of a claim to a ship
(1) In cases in which the claim concerns a registered ship, the third-party debtor shall be entitled and, should a creditor to whom the claim has been transferred so demand, the third-party debtor shall be obligated to surrender the ship, giving notice of the overall factual situation and making physical delivery of the orders served on him to the fiduciary appointed in the order first served on him.
(2) Subsection (1) shall apply mutatis mutandis if the claim concerns a ship under construction that has been entered in the register of ships under construction, or that is eligible for entry in such register.
Section 856
Action brought in the case of several attachments
(1) Each creditor to whom the claim has been transferred is entitled to bring an action before the courts against the third-party debtor for fulfilment of the obligations incumbent on the latter pursuant to the stipulations of sections 853 to 855.
(2) Each creditor for whom the claim has been attached may join the plaintiff, in any situation that the legal dispute may be in, as a joined party.
(3) The third-party debtor is to file a petition with the court hearing the case that the creditors who have not filed the action and who have not joined the plaintiff are to be summoned to the hearing for oral argument.
(4) The decision delivered in the legal dispute regarding the claim raised in the action shall take effect for and against the entirety of all creditors.
(5) The third-party debtor may not take recourse, vis-à-vis a creditor, to the decision in the third-party debtor’s favour if the creditor was not summoned to the hearing scheduled for oral argument.
Section 857
Compulsory enforcement against other property rights
(1) The above provisions shall apply mutatis mutandis to compulsory enforcement against other property rights that are not subject to compulsory enforcement against the immovable property.
(2) Where there is no third-party debtor, the attachment shall be deemed to have been effected at that point in time at which the order has been served on the debtor stipulating that he is to refrain from disposing over the right in any way.
(3) Absent any special rules, an inalienable right shall be subject to attachment insofar as its exercise may be left to another party.
(4) The court may issue special orders in effecting compulsory enforcement against inalienable rights, the exercise of which may be left to another party. In particular in cases of compulsory enforcement against rights of use, it may direct receivership; in such event the attachment shall be effected by the physical submission to the receiver of the object to be used, unless this has already been effected previously by service of the order.
(5) Insofar as it is admissible to dispose over the right as such, this disposition may be directed by the court as well.
(6) The rules regarding compulsory enforcement against a claim for which a mortgage has been created shall apply mutatis mutandis to compulsory enforcement against a realty charge, a charge on land, or an annuity charge on land.
(7) The rule set out in section 845 (1), second sentence, shall not be applied.
Section 858
Compulsory enforcement against a share in a ship
(1) Section 857 shall apply to compulsory enforcement against a share in a ship (sections 489 et seq. of the Commercial Code (Handelsgesetzbuch, HGB)), with the following departures from the rule.
(2) That local court (Amtsgericht, AG) shall have jurisdiction as the court responsible for execution with which the register for the ship is kept.
(3) The attachment must be entered in the register of ships; such entry shall be made on the basis of the attachment order. The attachment order is to be served on the managing owner of the ship; where the order is served on the managing owner prior to the entry in the register, the attachment shall be deemed to have been effected against him upon service having been made.
(4) The attached share in a ship is realised by way of disposition. An excerpt from the register of ships is to be enclosed with the petition that the court order the disposition, which excerpt is to set out all of the entries concerning the ship and the share in the ship; said excerpt may not be older than one (1) week.
(5) Should the excerpt from the register of ships show that the share in the ship is encumbered by a security right to which another creditor is entitled than the creditor pursuing compulsory enforcement, the court shall order the proceeds to be lodged. In such event, the proceeds shall be distributed according to the stipulations of sections 873 to 882; claims regarding which a security right to the share in the ship has been entered are to be included in the distribution plan in accordance with the content of the register of ships.
Section 859
Attachment of shares in jointly held property
(1) The share of a partner in the company assets of a partnership concluded pursuant to section 705 of the Civil Code (Bürgerlichen Gesetzbuch, BGB) is liable to attachment. The share of a partner in the individual objects belonging to the company assets is not liable to attachment.
(2) The same rules shall apply to a share of a joint heir to the estate and to the individual items constituting the estate.
Section 860
Attachment of shares to common marital property
(1) In cases in which the regime of common marital property has been agreed, the share of one spouse to the common marital property and the individual items constituting it is not liable to attachment. The same shall apply, in the event of the regime of common marital property continuing, to the shares of the surviving spouse and the descendants.
(2) Once the community under the regime of common marital property has ended, the share to common marital property is liable to attachment to the benefit of the creditor of the party entitled to the share.
Sections 861 and 862
(repealed)
Section 863
Limitations of attachment where usufruct under an inheritance is concerned
(1) Insofar as a debtor is limited as an heir pursuant to section 2338 of the Civil Code (Bürgerliches Gesetzbuch, BGB) as a result of a reversionary heir having been named, the usufruct of inheritance is not liable to attachment to the extent it is required by the debtor in order to fulfil his statutory obligation to pay maintenance to his spouse, his divorced spouse, his partner under a civil union, a former partner under a civil union, or his relatives, and in order to cover the costs of his maintenance suitable to his station in life. The same shall apply, where the debtor is limited pursuant to section 2338 of the Civil Code by an executor having been appointed, regarding his claim to the annual net proceeds.
(2) The attachment is admissible without limitation if the claim of a creditor of an estate is enforced, or a right that is effective also vis-à-vis the reversionary heir or the executor.
(3) These rules shall apply mutatis mutandis where the share held by a descendant in the common marital property, in the event of the regime of common marital property continuing pursuant to section 1513 (2) of the Civil Code (Bürgerliches Gesetzbuch, BGB), is subject to a limitation of the type designated in subsection (1).
Title 3
Compulsory enforcement against immovable property
Section 864
Subject matter of enforcements against real estate
(1) Besides plots of real estate, those entitlements shall be subject to compulsory enforcement against immovable property to which those rules apply that refer to plots of real estate, as shall be the ships entered in the register of ships and the ships under construction entered in the register of ships under construction or that are eligible for entry in such register.
(2) Compulsory enforcement against a portion of a plot of real estate, of an entitlement of the type designated in subsection (1), or of a ship or a ship under construction shall be admissible only where the portion consists of the share of a co-owner or where the creditor’s claim is based on a right with which the portion as such has been encumbered.
Section 865
Relationship to enforcements against movable property
(1) Compulsory enforcement against immovable property shall comprise also those objects to which the mortgage extends in the case of plots of real estate and entitlements, and to which the maritime mortgage extends in the case of ships or ships under construction.
(2) Insofar as they are accessories, these items cannot be attached. Under all other circumstances, they shall be subject to compulsory enforcement against movable property provided that they were not attached as part of a compulsory enforcement against immovable property.
Section 866
Types of enforcement
(1) Compulsory enforcement against a plot of real estate is implemented by entry of a debt-securing mortgage for the claim, by enforced auction, and by receivership.
(2) The creditor may demand that one of these measures be implemented alone or in addition to the others.
(3) A debt-securing mortgage (subsection (1)) may be entered only for an amount greater than 750 euros; interest being enforced as an ancillary claim shall not be taken into account in this context. A uniform debt-securing mortgage may be entered based on several enforceable deeds of title to which one and the same creditor is entitled.
Section 867
Judgment creditor’s mortgage
(1) Upon the creditor filing a corresponding petition, the debt-securing mortgage shall be entered in the land register; such entry is to be noted on the executory title. The mortgage shall be created by the entry being made. The plot of real estate shall be liable also for the costs of entry to be borne by the debtor.
(2) In cases in which several of the debtor’s plots of real estate are to be encumbered by the mortgage, the amount of the claim is to be allocated to the individual plots of real estate. The creditor shall determine the amounts so allocated; section 866 (3), first sentence, shall apply mutatis mutandis to the parts.
(3) The executory title bearing the notice of entry shall be sufficient basis for satisfying the creditor’s claim from the plot of real estate by implementing an enforced auction.
Section 868
Acquisition of the judgment creditor’s mortgage by the owner
(1) If an enforceable judgment reverses the decision to be enforced, or its provisional enforceability, or if compulsory enforcement is declared inadmissible, or if directions are issued for it to be terminated, the owner of the plot of real estate shall acquire the mortgage.
(2) The same shall apply where a court decision directs the temporary stay of the enforcement and, at the same time, abrogates the enforcement activities taken, or where security is provided or lodgment made as permitted by the court so as to avert the enforcement.
Section 869
Enforced auction and receivership
The enforced auction and receivership have been provided for in a separate law.
Section 870
Rights equivalent to real estate
The rules governing compulsory enforcement against plots of real estate shall apply mutatis mutandis to compulsory enforcement against an entitlement governed by the rules applying to plots of real estate.
Section 870a
Compulsory enforcement against a ship or a ship under construction
(1) Compulsory enforcement against a ship entered in the register of ships, or against a ship under construction entered in the register of ships under construction, or that is eligible for entry in such register, shall be effected by the entry of a maritime mortgage regarding the claim or by enforced auction. Ordering the enforced auction of an ocean-going vessel is inadmissible where said vessel is travelling and not lying at harbour.
(2) Section 866 subsections (2) and (3), section 867 shall apply mutatis mutandis.
(3) Should an enforceable judgment reverse the decision to be enforced, or its provisional enforceability, or should compulsory enforcement be declared inadmissible or directions be issued for it to be terminated, the maritime mortgage shall expire; section 57 (3) of the Act Governing Rights in Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken) dated 15 November 1940 (Law Gazette of the Reich (Reichsgesetzblatt, RGBl.) I page 1499) is to be applied. The same shall apply where a court decision directs the temporary stay of the enforcement and, at the same time, abrogates the enforcement activities taken, or where security is provided or lodgment made as permitted by the court in order to avert the enforcement.
Section 871
Reservations under Land law applying to railway operations
The stipulations of Land law shall remain unaffected, according to which the rights of use and certain objects dedicated to the railway operation or local railway line form part of the immovable property with a view to compulsory enforcement if a party other than the owner of a railway operation or a local railway line operates the railway operation or local railway line based on its right of use, and according to which compulsory enforcement has been provided for in derogation from the stipulations of the laws of the Federal Republic.
Title 4
Distribution proceedings
Section 872
Prerequisites
The proceedings for the distribution of assets available for creditors is an available remedy if the amount of money lodged in the course of compulsory enforcement against the movable property is not sufficient to satisfy the creditors involved.
Section 873
Request made by the court responsible for the distribution of assets
Upon receiving the notification as regards the overall factual situation, the local court (Amtsgericht, AG) responsible (sections 827, 853, 854) is to deliver a notice to each of the creditors involved requesting that they submit a calculation of their respective claim in terms of principal, interest, costs, and other ancillary claims within two (2) weeks.
Section 874
Distribution plan
(1) Following expiry of the two-week periods, the court shall prepare a distribution plan.
(2) The amount of the costs of the proceedings is to be deducted in advance from the existing assets.
(3) The claim of a creditor, who has failed to comply with the request issued to him by the court by the date of the distribution plan being prepared, shall be calculated in accordance with the notification and its documents. The claim may not be amended retroactively.
Section 875
Determination of a hearing date by the court
(1) The court is to determine a hearing date at which the parties may state their positions regarding the distribution plan and at which the distribution is to be implemented. The distribution plan must be deposited for inspection by the parties involved with the court registry no later than three (3) days prior to the hearing.
(2) It is not necessary to summon the debtor to the hearing if such summons were to be served abroad or by publication.
Section 876
Hearing for declaration and implementation
If no opposition is lodged against the plan at the hearing, it is to be implemented. If an opposition is lodged, each of the creditors involved is to immediately react in substance. Should the opposition lodged be acknowledged by the parties involved as having merit, or should an agreement be reached otherwise, the plan is to be corrected accordingly. Where an opposition cannot be conclusively dealt with, the plan shall be implemented insofar as it is not affected by the opposition.
Section 877
Consequences of a failure to comply with procedural rules
(1) Should a creditor have failed to make an appearance at a hearing and have likewise failed to lodge an opposition with the court prior to the hearing, it is assumed to his detriment that he agrees to the plan being implemented.
(2) If a creditor who has failed to make an appearance at a hearing is involved in the opposition lodged by another creditor, it is assumed that he does not acknowledge this opposition to have merit.
Section 878
Action brought in support of an opposition lodged
(1) The creditor lodging an opposition must submit evidence to the court, without a prior request needing to be made, and doing so within a period of one (1) month beginning on the date of the hearing, that he has brought proceedings in court against the creditors involved. Once this deadline has expired without success, the court shall direct the plan to be implemented without consideration of the opposition lodged.
(2) The authority of the creditor opposing the plan to enforce a better right against the creditor who has received an amount of money under the plan by way of bringing a corresponding court action, is not ruled out should he have failed to adhere to the period, nor is it ruled out by the implementation of the plan.
Section 879
Court competent for the action brought in support of the opposition
(1) The action is to be brought with the court responsible for the distribution of assets and, where the local courts (Amtsgerichte, AG) are not competent for the subject matter of the litigation, with the regional court (Landgericht, LG), in the district of which the court responsible for the distribution of assets has its seat.
(2) The regional court (Landgericht, LG) shall have jurisdiction for the entirety of all actions brought if its competence, based on the content of the oppositions entered in the hearing without having been dealt with conclusively, it has jurisdiction for one single action alone, unless the entirety of all creditors involved agree that the court responsible for the distribution of assets is to decide on all instances in which an opposition was entered.
Section 880
Content of the ruling
The ruling handed down on the opposition entered is to likewise determine the amounts in which the portion of the assets that is at issue is to be paid out to which creditors. Should this not be deemed appropriate, the judgment is to order a new plan to be prepared, as well as new proceedings for the distribution of assets available for execution creditors.
Section 881
Default judgment
The default judgment against a creditor who has entered an opposition is to be delivered to the effect that the opposition is to be deemed retracted.
Section 882
Procedure following the ruling
Based on the ruling delivered, the court responsible for the distribution of assets shall direct the disbursement of the assets, or the other proceedings for the distribution of assets available for execution creditors.
Title 5
Compulsory enforcement against legal persons under public law
Section 882a
Compulsory enforcement for a monetary claim
(1) Unless rights in rem are being pursued, compulsory enforcement for a monetary claim against the Federation or against a Land may commence only four (4) weeks following the time at which the creditor has given notice, to the public authority authorised to represent the debtor, of his intention to pursue compulsory enforcement and, to the extent such compulsory enforcement is to be effected against assets managed by another public authority, to the responsible Minister of Finance. Upon this being demanded, the receipt of the notice is to be confirmed to the creditor. Insofar as compulsory enforcement is to be implemented by the court-appointed enforcement officer in such cases, the enforcement officer is to be determined, upon the creditor filing a corresponding petition, by the court responsible for execution.
(2) Compulsory enforcement is not admissible against objects that are indispensible for the performance by the debtor of tasks governed by public law, or the disposition over which is contravened by public interest. In the event of a dispute, the matter of whether or not the prerequisites set out in sentence 1 have been met shall be decided on pursuant to section 766. Prior to the decision being handed down, the responsible minister is to be heard.
(3) The stipulations of subsections (1) and (2) are to be applied to compulsory enforcement against corporations, institutions, and foundations under public law, subject to the proviso that the legal representatives shall take the stead of the public authority in the sense as used in subsection (1). The limitations of subsections (1) and (2) shall not apply to banks and loan institutions under public law.
(4) (repealed)
(5) If the matter concerns the execution of an injunction, the requirements of providing an advance notice of compulsory enforcement and of the waiting period set out in subsections (1) and (3) need not be complied with.
Title 6
List of debtors