Claim (right)

In jurisprudence, a right is the right to demand that another act , tolerate or omit . The claim heard how the personality , property law and design rights to individual rights . In contrast to objective law , these give the individual concrete legal power. The subjective rights are derived directly from the objective right.

Civil law as a system of claims

The importance of the claim for civil law becomes clear when the entire civil law is understood as a system of claims. This is based on the view that the Roman law -based doctrine of claims is a key to understanding the application of civil law laws, in particular the BGB. The judge decides on the legal question posed in the case on the basis of an interpretation of the law from the point of view of the doctrine of claims.

The claim in German law

The concept of entitlement was largely developed in Germany by Bernhard Windscheid for civil law studies, but has meanwhile also established itself in other areas of law . Essential for this was the distinction between the subjective legal position and its assertion by way of action , as it was not yet implemented in the action law thinking of the previously taught common law .

civil right

Concept and delimitation of the claim in civil law

A claim in the substantive legal sense is understood to mean the right of an individual ( subjective right ), an action by another , such as the payment of a sum of money , the submission of a declaration of intent or the handover of a thing, a toleration if someone, for example, the use of a thing or contractually leaves a right to others or to demand an omission , for example the omission of unreasonable noise. A legal definition can be found in Section 194 (1) BGB . The one who can demand the act, toleration or omission is called the creditor or claimant , the one who has to perform is called the debtor or the opponent .

Examples: Claims are, for example, the right of the seller to demand payment of the purchase price from the buyer , the right of the tenant to demand that the landlord surrender the rented apartment , the right of the child to demand maintenance from his or her parents or the right of the landowner from To demand that his neighbors refrain from making unreasonable noise.

Claims can arise directly from a law , for example in the case of a claim to cease making noise against a neighbor. These claims are called legal claims . Another significant group of claims arises from agreements between the obligee and the debtor in a contract . These claims are known as contractual claims . One example is the right to payment of the purchase price.

The right set from which the claim results in the individual case, the for this case basis for a claim . It can be both a legal provision and a contractual regulation.

The claim does not automatically give the claimant the legal position to which the claim is directed. For example, the tenant who has a right to lease the rented apartment from his landlord does not become the owner of the apartment simply because he has this right. Only when the debtor has carried out the act or omits the behavior towards which the claim is directed, i.e. when the landlord has actually handed over the apartment to the tenant, this legal position is reached and the claim is thus fulfilled ( fulfillment ). If the debtor does not perform this service voluntarily - possibly after a reminder - the obligee can sue for this service . If the debtor is convicted, but this also does not induce him to effect the performance, the obligee can enforce the judgment .

This distinguishes the claim from the right to design . The right to design enables the holder of this right to bring about a change in the law himself without the involvement of the person concerned.

Examples: The structuring rights include the right of the tenant or the employee to terminate their rental or employment contract by giving notice; the right of the fraudulently deceived buyer to contest his sales contract; or the right of the consumer to withdraw from a distance selling transaction within certain time limits.

No lawsuit is necessary to enforce a right to design. A confirmation of the right to design - for example, the "confirmation" of the termination of a course participant by his fitness studio - is also not required. It is sufficient for the right holder to give the person concerned the termination or declare the challenge or revocation. In connection with design rights, the concept of claim is fundamentally wrong; For example, anyone who is allowed to terminate a contract does not have a “right to termination”, but simply a right to terminate.

Insofar as civil procedural law uses the concept of a claim, it does not understand the above claim in the substantive sense, but the subject of the dispute . The reason for this is on the one hand the procedural context ( relativity of the legal terms ), on the other hand the fact that the civil procedure code as part of the Reich Justice Acts is older than the BGB.

Restrained claim

A subdued claim is characterized by the fact that the debtor may not perform the service before the obligee demands it. In such claims are in accordance with the law of the Federal (BGH) since entry into force of guilt Modernization Act required for the loan , the deposit and the safekeeping applicable special limitation rules of § § 604 , para. 5 BGB, § 695 sentence 2 BGB, § 696 3 BGB set corresponding applicable. The traveller's entitlement to the redemption of travel values when booking travel services is not a restrained entitlement because it only arises when the traveller's assertion is made. In contrast to a subdued claim, in which the creation of the claim and its assertion by the obligee, there is therefore no risk that the claim is statute-barred at the time it is asserted.

The fate of the claim

Change of people involved

Once a claim has arisen, this does not mean that the persons involved as debtors and creditors are fixed for the lifetime of the claim. The participants can be exchanged; further participants can join.

For example, a claim can be transferred by assignment from one obligee to another, unless the assignment is exceptionally excluded. Conversely, the debtor can be exchanged by assuming debt . In contrast to the assignment - which is a structuring right - the assumption of debt is only possible with the consent of the other party, i.e. the obligee.

By joining the debt, other people on the debtor side can also be included in the claim. The fact that the obligee can only demand the performance to which the claim is directed does not change anything (the new entrants and the existing debtor generally become joint and several debtors ).

Downfall and blockade of the claim

Claims can be lost (expired) over time. If the claim has expired or otherwise perished, the obligee can no longer demand the act or omission to which the claim was originally directed. The most important case of lapse is fulfillment : If the debtor has performed his or her performance, i.e. if the car buyer has paid the purchase price, for example, the creditor's claim to this expires. Once the claim has expired, it does not come back to life. A lawsuit based on an expired claim will not succeed.

Examples: A claim can also expire if the creditor and debtor revoke it by contractual agreement, the creditor waives it or the debtor declares the challenge .

Finally, the obligee can be temporarily or permanently prevented from enforcing the claim due to counter-rights of the debtor. For example, the debtor may be entitled to a right of retention because of another claim that he himself has against the obligee.

Time limits

Claims are typically Although unlimited in time, but are subject to the plea of the statute of limitations . After the limitation period has expired, the claim can no longer be enforced with the aid of the action if the opponent invokes the limitation period (which is the difference between an objection and an objection in the narrower sense).

As a rule, a claim expires within three years ( Section 195 BGB), but other periods are possible. The limitation period usually begins at the end of the year in which the claim arose and the obligee became aware of the existence of the eligibility requirements and the identity of the debtor ( § 199 BGB).

The statute of limitations can be temporarily delayed by certain measures - in particular by filing a lawsuit or delivering a court order for payment . By contract, the parties can regulate the statute of limitations within certain limits, also deviating from the statutory provisions.

Claim and enforcement by action

In German law, the claim has replaced the action (actio) in Roman law . He is content restricted to the substantive substrate of the Roman legal action, so the question of whether the plaintiff from the defendant to pay that may require him Sought After by law, the defendant is therefore legally bound to the desire of the applicant row. For the German lawyer, the lawsuit is only a means of enforcing the material claim (see formal law ). The question of whether there is a claim determines whether the claim is well founded . The plaintiff must prove to be the creditor and the defendant as the debtor in substantive law, otherwise he loses the process.

German civil law makes a sharp distinction between substantive claims ( e.g. from the BGB) and the possibility of realizing them by way of legal action ( procedural law - e.g. the ZPO ). In some provisions of the BGB, the entitled person is given the wording of the right to "sue" for something; in the old terminology he is “given a lawsuit” ( § 12 , § 1004 BGB - “lawsuits” for injunctive relief). However, this should not obscure the fact that these regulations also regulate real material claims and only linguistically deviate from the normal scheme. The German lawyer no longer asks whether there is a lawsuit, but rather whether there is a claim that bears the plaintiff's request, in other words, on what substantive legal basis the plaintiff can base his request on.

This separation between claim and enforcement is particularly clear where there is a material claim to a certain behavior, but this claim cannot be sued or enforced for procedural reasons (so-called uncomplaining claims, see natural obligation ).

The "claim" in other sub-areas of law

Criminal law

Sanction norms contain both the right of society to a just punishment for perpetrators (as opposed to vigilante justice ) and the right of the state to prosecute the offense (“state criminal claim”).

Public law

Claims are not restricted to civil law . Also, the public law knows the power to request from another one acts or omissions, such as the right of the owner to grant one of the building authority, building permit to demand when public regulations do not preclude the construction project. However, in public law, the term subjective public law has become established instead of the term “entitlement”.

With the development of the doctrine of legal relationships in public law, the basis has also been created for a conception of claims under public law ( Wilhelm Henke) .

Individual evidence

↑ Jan Schapp : Civil law as a system of claims in: Jan Schapp: Methodology and System of Law . Articles 1992-2007. Mohr Siebeck, Tübingen 2009. ISBN 978-3-16-150167-8 .
↑ Jan Schapp: Methodology of Civil Law . UTB, Stuttgart 1998, ISBN 978-3-8252-2016-7 .
^ Bernhard Windscheid , The Actio of Roman Civil Law from the Viewpoint of Today's Law , Düsseldorf 1856, p. 221 ff.
↑ Bernd Rüthers , Astrid Stadler: General part of the BGB . 18th edition. Verlag CH Beck , Munich 2014, ISBN 978-3-406-66843-2 , p. 53 .
↑ BGH, judgment of May 4, 2017, Az .: I ZR 113/16 = BGH WM 2018, 915

[1] Jan Schapp : Civil law as a system of claims in: Jan Schapp: Methodology and System of Law . Articles 1992-2007. Mohr Siebeck, Tübingen 2009. ISBN 978-3-16-150167-8 .

[2] Jan Schapp: Methodology of Civil Law . UTB, Stuttgart 1998, ISBN 978-3-8252-2016-7 .

[3] Bernhard Windscheid , The Actio of Roman Civil Law from the Viewpoint of Today's Law , Düsseldorf 1856, p. 221 ff.

[4] Bernd Rüthers , Astrid Stadler: General part of the BGB . 18th edition. Verlag CH Beck , Munich 2014, ISBN 978-3-406-66843-2 , p. 53 .

[5] BGH, judgment of May 4, 2017, Az .: I ZR 113/16 = BGH WM 2018, 915