Dilatorial objection

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System of objections and objections

The dilatory defense (dilatio (Latin) = postponement, delay) is a legal term from civil law . It describes a legal objection by the debtor against a claim by the obligee .

By raising the objection, the enforcement of the creditor's claim is inhibited as long as the requirements for the dilatory objection are met. Examples of such objections are § 273 BGB (right of retention) and § 320 BGB (defense of non-fulfilled contract).

If, for example, the buyer (creditor of the claim to the purchased item) demands the delivery of the purchased item from the seller (debtor of the claim to the purchased item), the seller can plead (object) that the buyer has not yet paid the purchase price to him and he therefore the purchased item does not have to be handed over ( Section 320 BGB). The buyer's claim resulting from the purchase contract (cf. § 433 BGB) is thus inhibited, i.e. H. unenforceable. But if the buyer pays now, the seller loses this objection. He must hand over the purchased item and provide the buyer with ownership .

A dilatory objection is a structuring right . This means that the debtor can collect it, but does not have to. In the example, the seller can also surrender the purchased item without having already received the purchase price. The objection is therefore only taken into account in the process if the debtor expressly invokes it. If, in the above example, the buyer sues the seller to hand over the item, the court will, if the seller invokes non- payment of the purchase price, condemn the seller to perform the purchase item step by step against payment of the purchase price ( Section 322 BGB).

The counterpart to the dilatory objection is the peremptorical objection (permanent objection), such as B. the defense of limitation . If an objection is made, the claim is permanently suspended.

literature

  • Thomas Kochendörfer: The need to justify the exercise of civil law design rights , University of Tübingen, dissertation 2010, Cuvillier Göttingen 2010, ISBN 978-3-86955-498-3 .
  • Karl Larenz , Manfred Wolf: General part of civil law. 9th edition. Munich 2004.
  • Karin Linhart : The system of the basis of claims, objections and defenses in the civil law exam. In: Juristische Arbeitsblätter 2006, pp. 266–270.
  • Herbert Roth: The defense of civil law , University of Munich, habilitation thesis 1986, Beck, Munich 1988, ISBN 3-406-33067-3 .