Exchange attachment (Germany)
From the exchange of garnishment is spoken when the enforcement court , the seizure of a per se non-attachable permits thing, provided that the creditor shall provide the debtor prior to the removal of the things a replacement part that meets the protected use, or it takes to obtain such a replacement part amount of money ( § 811a ZPO).
In the case of pre-seizure , the property that cannot be seized is left in the custody of the debtor.
example
Although televisions and wristwatches are basically non-attachable ( § 811 ZPO ), you could z. For example, imagine that the expensive Ultra HD television set with a large screen or a Rolex watch is stolen from the debtor by way of foreclosure . Since, in principle, a television set or a wristwatch must remain with the debtor, he is given a significantly cheaper television set or a cheaper wristwatch - in exchange . The exchanged items become the property of the debtor.
| Seized item | value | exchanged item | value | Gain for the creditor |
|---|---|---|---|---|
| Ultra HD widescreen television | 1,800 € | normal, smaller television set | 150 € | 1,650 € |
| Rolex | € 6,000 | Swatch | 30 € | € 5,970 |
| Hifi | € 1,000 | normal radio device | 25 € | 975 € |
The replacement seizure of a motor vehicle that is required to continue a gainful activity is only permitted if the replacement part has approximately the same durability and service life. If the replacement part is significantly older and has defects such as rust and worn tires, this is usually not the case.
Handling of the exchange attachment
The enforcement court decides on the admissibility of the exchange attachment at the request of the obligee by resolution. In the case of enforcements under public law, the enforcement authority takes the place of the enforcement court. The bailiff is also able to make a provisional exchange attachment without the prior consent of the enforcement court if, according to the current situation, the approval of the enforcement court can be expected. The obligee must make up the application for the admissibility of the exchange attachment within two weeks after notification of the attachment ( Section 811b (2) ZPO).
The exchange will usually take place step by step. The obligee must participate in the attachment of the exchange insofar as he must make the objects to be surrendered to the debtor available. This can also be done by paying the corresponding amount of money.
Individual evidence
- ↑ Patrick Brock: Non-attachability of movable property (II) DGVZ 1997, pp. 65, 66
- ↑ BGH, June 16, 2011, AZ VII ZB 114/09
