Acknowledgment

Change of an obligation

In civil law, the acknowledgment is a contract between the creditor and the debtor ( acknowledgment of debt ) or, in civil procedure law, a procedural act with which a defendant in court proceedings recognizes the claim of the plaintiff in whole or in part.

General

The General Prussian Land Law (APL) of June 1794 already provided that legal acts, from which a complete knowledge of a contract and at the same time the repeated approval of its content is made clear, counted as tacit acknowledgment (I 5, § 189 APL). Today's jurisprudence places lower demands on an acknowledgment than on a declaratory or even constitutive acknowledgment of guilt. Acknowledgment is an indefinite legal term that describes a (also purely factual) behavior through which a legal subject confirms the claim of another legal subject at least through actual acts (“factual recognition ”). The Reichsgericht (RG) made it clear as early as 1910 that not every acknowledgment, but only an acknowledgment of guilt within the meaning of Section 781 of the German Civil Code (BGB) constitutes an independent, private-law obligation.

civil right

General

A payment can therefore already be an external characteristic of an acknowledgment . According to Section 212 (1) No. 1 BGB, the statute of limitations begins again if the debtor acknowledges the claim against the obligee by means of a down payment , interest payment , security deposit or in another way. But paying an invoice alone does not constitute recognition. An independent, constitutive acknowledgment of debt ruled here regularly because the debtor is not a new liability reasons, but wants to wipe out the (supposedly) existing liability. The unconditional payment of an invoice does not in itself justify the acceptance of a declaratory or an "actual" acknowledgment of the settled claim, because the fact that an invoice is unconditionally paid does not make any statement about its character as an act of fulfillment ( Section 363 BGB) by the debtor is included, at the same time the existence of the fulfilled claims as a whole or in individual relationships out of dispute .

Legal issues

When it comes to the legal question of whether there is an acknowledgment, a comprehensive assessment of the circumstances of the respective individual case is always required, i.e. in principle an examination of the individual (possible) "acts of acknowledgment" of the debtor. If the explanations only relate to facts (e.g. the driver's written declaration about the accident at the scene of the accident) and there is no reason for a legal obligation, there is no acknowledgment. An acknowledgment is to be assumed, however, if the debtor expresses his will to undertake in a written declaration. Acknowledgment is any - even a purely actual - behavior of the debtor towards the creditor, from which the awareness of the existence of the claim - at least in terms of the reason - results unequivocally and which therefore establishes the creditor's trust that the debtor will not return after the Limitation period is immediately invoked. Acknowledgment can only be issued within a period of limitation that is still running ( Section 212 Paragraph 1 No. 1 BGB).

Acknowledgment as a substantive and legal contract

A legal acknowledgment as a contract between the obligee and the debtor is called an acknowledgment of debt. It appears as a declaratory or constitutive (also: abstract) acknowledgment of guilt. A declaratory acknowledgment of guilt does not affect the reason for guilt, but it does mean that the debtor loses all objections to the claim that he could have raised at the time of the acknowledgment of guilt. A constitutive or abstract acknowledgment of guilt, on the other hand, establishes a new, independent debt relationship . It can replace the old debt relationship ( novation ) or appear alongside the old debt relationship as a further reason for guilt. The constitutive acknowledgment of guilt is subject to reclaim ( condition ) if it was given as a result of an alleged obligation that actually did not exist. The declaration of a debtor who is not a businessman in the sense of the German Commercial Code (HGB) that he wishes to make a constitutive acknowledgment of debt must be made in writing; however, the obligee's declaration of acceptance does not need to be in writing .

Civil procedural law

Acknowledgment judgment in a civil law procedure before the regional court (Chamber for Commercial Matters)

The civil procedural acknowledgment is the unilateral procedural declaration by the defendant that the claim asserted against it is fully or partially justified ( partial acknowledgment ). In this case, it is to be sentenced in accordance with the acknowledgment by an acknowledgment judgment ( § 307 ), provided that the prerequisites for the factual judgment are met; the judgment does not require any further justification. A distinction must be made between procedural acknowledgment and civil procedural admission . A confession ( Section 288 of the German Code of Civil Procedure ) does not relieve the court of responsible examination as to whether the undisputed facts justify the legal consequence sought. A judgment based on a confession must therefore be justified and appealed against .

Procedure

Acknowledgment requires the postulative ability of those who submit it. There is no condition to explain (condition hostile) and irrevocable.

Since the amendment to Section 307 of the German Code of Civil Procedure on August 1, 2004 , the court has had to issue an acknowledgment judgment even without a motion by the plaintiff. If an acknowledgment is given outside of the oral hearing, an oral hearing is no longer required. The approval judgment does not require any justification. If, however, the prerequisites for a factual judgment are missing, the action is to be dismissed as inadmissible despite the acknowledgment by trial judgment . Due to the multiple references to the civil procedure code in other procedural codes, a judgment of acknowledgment beyond the civil procedure is permissible in many processes in which the disposition maxim applies, for example in administrative processes . In processes of social justice, on the other hand, an accepted acknowledgment does not lead to a judgment of acknowledgment, but to the settlement of the legal dispute in the main matter , because this acknowledgment already constitutes an enforcement title ( Section 101 , Section 199 (1) No. 3 SGG ).

By definition, only a defendant party can issue procedural acknowledgment. On the plaintiff's side, the mirror-image declaration, the definitive task of the claim, is the waiver, which leads to the issuance of a waiver judgment.

Cost consequences

The procedural acknowledgment may lead to a breach of the principle that the losing party in the process has to bear the costs of the legal dispute. If the admission was given immediately and the defendant did not give cause to bring a lawsuit , the costs of the proceedings will be charged to the plaintiff. In civil law, this regulation follows from § 93 ZPO, while § 156 VwGO sets this legal consequence for administrative disputes . Immediately means that the acknowledgment must be made the first time you apply. No cause for filing a lawsuit means that the plaintiff could not have any reason to assume that he would only achieve his goal with judicial help.

Examples:

Action for payment without the defendant being in default ,
Application for an injunction without prior warning .

The Federal Court of Justice (BGH) has made it clear that immediate acknowledgment can still be made after the first application has been made in the further course of the proceedings if the complaint was initially inconclusive. The defendant is not obliged to "recognize a substantiated claim that was only put forward in the further course of the legal dispute - as if on suspicion - as justified, just to be able to evade the burden of costs."

Administrative procedural law

In the administrative process, too, the issuance of an acknowledgment judgment can be made analogous to civil procedure law according to § 173 VwGO i. V. m. § 307 ZPO can be applied for, provided that the type of action allows. This is the case, for example, in the event of a legal action against obligations or the assertion of a payment claim. The principle of official investigation in administrative procedural law ( Section 86 VwGO) does not conflict with this.

Acknowledgment and statute of limitations

In the area of statute of limitations under civil law , an acknowledgment is also any declaration by a legal entity that a claim by a counterparty is justified; it interrupts the statute of limitations. Even such a non-legal acknowledgment, even if it does not constitute a declaration of a process, can have an impact on the outcome of the process in the legal dispute through the appraisal of the party’s presentation and the evidence.

International

In Switzerland , the debt acknowledgment is called the admission of guilt and is the confirmation of the debtor that a claim against him is justified. According to Art. 17 OR, it is also valid without specifying a reason for the obligation. In Swiss debt enforcement law , the existence of an acknowledgment of guilt means that the creditor does not have to follow the normal process in the legal proceedings , but can be granted provisional legal disclosure. The Swiss family law provides in Art. 260 ZGB that the child relationship existing only to the mother can be recognized by the father. According to Art. 260a of the Civil Code, anyone in the court can contest the recognition , namely by the mother, the child and, after his death, the descendants as well as the home or community of residence of the recognizing person.

In Austria , an acknowledgment is substantively a civil law contract ( acknowledgment contract ), with which a dispute over a dubious or contentious right is ended by unilaterally giving in to one side. A constitutive acknowledgment creates - in contrast to a declarative acknowledgment - a new reason for obligation. The statute of limitations is interrupted if the debtor has expressly or conclusively recognized the claim ( § 1497 ABGB ). No constitutive acknowledgment is required for this; declarative acknowledgment (a mere declaration of knowledge) also interrupts the statute of limitations. The Austrian procedural law does not expressly regulate the acknowledgment, but it is known as a subtype of the settlement as "one-sided yielding". It is a declaration of agreement by which one party fully concedes the right in question. Process prerequisites and preliminary questions as well as facts to be checked ex officio cannot be recognized. At the request of the plaintiff, a decision must be made in accordance with the acknowledgment ( Section 395 of the Austrian Code of Civil Procedure ).