Third party opposition action

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The third party contradiction suit (also: intervention suit ) is a procedural structural action under German enforcement law , regulated in § 771 to § 774 of the Code of Civil Procedure (ZPO). The aim of the action is to declare individual enforcement measures inadmissible because they were carried out in assets that are not part of the debtor and are not liable to the enforcement creditor.

Until the end of the enforcement, the objection to the enforcement in non-debtor assets in performance and declaratory actions is only to be asserted according to § 771 ZPO. In contrast to other legal remedies , the reminder according to § 766 ZPO comes into consideration if enforcement procedural errors are to be complained about . If substantive objections of the law preventing the sale are raised, only § 771 ZPO is again relevant. If both types of objections are raised, they are possible side by side. Optionally, action for action for preferential satisfaction according to § 805 ZPO is also possible. Interim relief granted pursuant to § 771 para. 3, § 769 ZPO the interim measures .

Purpose and legal nature

If the bailiff has an order to seize an item , he checks whether it is in the debtor's custody . By law, it is not necessary to check whether the thing is owned by the debtor or encumbered with the rights of a third party. Such an examination could often only be carried out with great effort and therefore impair the effectiveness of the foreclosure. Thus a thing that is not part of the debtor's debt can be attached. The same applies to the attachment of claims . In order to protect his rights, the right holder can bring a third party action.

According to the prevailing opinion, the third party opposition action is a procedural structural action , since a declaratory or performance action did not result in inadmissibility of foreclosure. Parallel to the third-party action has for the bankruptcy procedure to assert a separation right after § 47 of Insolvenzordnung on (InsO).

Differentiation from other legal remedies

The third party opposition action must be distinguished from other legal remedies under the law of enforcement:

With the enforcement reminder according to § 766 ZPO, a foreclosure can be checked for procedural errors. However, since the material legal situation is not checked during enforcement, the seizure of a non-debtor object does not constitute a procedural error. With the reminder, the third party cannot protect his material rights. However, if the enforcement is incorrectly processed, the enforcement reminder can be invoked in addition to the third-party action.

With the enforcement defense action according to § 767 ZPO, the enforcement debtor attacks the titled claim with substantive objections. It is therefore not available to the third party.

With the action for preferential satisfaction according to § 805 ZPO, a creditor asserts a right that gives him priority over other creditors in enforcement. It behaves like a minus to the third party objection action.

A performance suit against the obligee, which is aimed at the surrender of the seized item or at the omission of the foreclosure, is inadmissible during the enforcement, as the third party objection suit is the more specific legal remedy. According to Section 771 (2) of the German Code of Civil Procedure (ZPO), the third party can, however, sue the debtor for performance in parallel to the third party action. In this case, debtors and creditors are simply comrades in dispute .

Admissibility requirements of the third party objection suit, § 771 ZPO

(1) If a third party claims that he has a right to prevent the sale of the object of the foreclosure, the objection to the foreclosure must be filed with the court in whose district the foreclosure takes place.

(2) If the action is directed against the obligee and the debtor, they are to be regarded as comrades in the dispute.

(3) The provisions of Sections 769, 770 shall apply mutatis mutandis to the suspension of compulsory enforcement and the cancellation of the enforcement measures already taken. The lifting of an enforcement measure is also permissible without the provision of security.

Admissibility

The third party objection action is permissible if a third party asserts a right to an enforcement object that prevents the sale by the enforcement creditor. He has to explain this conclusively .

Need for legal protection

The need for legal protection is generally given in the period between the beginning and the end of enforcement.

Enforcement begins when the first enforcement act is carried out. From this point in time, the debtor's objects are at risk from enforcement. An exception applies in cases of surrender enforcement: Since this is directed against a specific object, this is already threatened by enforcement when the title is created. Therefore, the title justifies the need for legal protection. If there is no need for legal protection because enforcement has not yet started, the obligee can sue for an omission of enforcement in accordance with Section 1004 of the German Civil Code (BGB).

With the completion of the enforcement, the need for legal protection no longer applies, since the legal objective - the prevention of enforcement - can no longer be achieved from this point in time. The third party can then only demand the proceeds of the sale as unjust enrichment .

Jurisdiction

According to Section 771 (1) ZPO, the local court in whose district the attacked act of attachment was carried out is responsible. According to § 802 ZPO, this is an exclusive competence.

The factual jurisdiction is based on § 23 , § 71 of the Courts Constitution Act (GVG): It is basically based on the amount in dispute. Up to a value in dispute of 5,000 euros, the local court is responsible, otherwise the regional court . The value in dispute is measured according to § 6 ZPO according to the value of the thing or the asserted claim. If both values ​​are different, the lower value is decisive. Allocations independent of the value of the dispute exist for specific matters, for example for disputes in the context of a residential tenancy agreement .

Well-foundedness of the third party objection suit, § 771 ZPO

The third party opposition action is justified if the plaintiff has a right to prevent the sale within the meaning of Section 771 of the German Code of Civil Procedure. The right to intervene is an authorization on the basis of which the debtor's sale of the object of enforcement would be illegal to the authorized third party. The prerequisite for this is that the object of enforcement is not part of the enforcement debtor's assets and that a third party has a real or mandatory right to the object. For this purpose, case groups have been formed in the case law.

property

The right to intervene based on property is of practical importance . It represents the prototype of § 771 ZPO: For example, rented objects in the debtor's household cannot be held liable for the debtor's liabilities because they are owned by the landlord. Therefore, the landlord can declare that the enforcement of the matter was inadmissible. Joint ownership also entitles the holder to intervene, which can be significant in the case of division auctions according to § 180 ZVG . The reservation owner has a right of intervention on the basis of his expectant right , the reservation seller on the basis of property. The conditional buyer can, however, only prevent the use in the foreclosure with the third party objection action, but not the seizure of the thing, as this does not yet endanger the expectant right. Ultimately, the lessor also has the option of bringing a third party action if his leasing rights are impaired.

Restricts real rights

Rights in rem are rights of intervention if they are directly affected by the enforcement. This is possible, for example, when enforcing a thing that is part of the liability association of a mortgage or land charge ( Section 1120 BGB). This applies, for example, to agricultural implements on a farm, which are property accessories according to Section 98 of the German Civil Code (BGB ). On the other hand, there are no right to intervene limited real rights against foreclosure on the property itself, as this cannot affect the real estate lien and a forced mortgage is subordinate to the real estate lien .

Whether a lien on a thing gives a right to intervene depends on whether its owner is the owner of the pledged thing. If he is the direct or indirect owner, for example in accordance with § 1205 BGB in the case of contractual lien, he is entitled to intervene in accordance with § 771 ZPO. If he is not an owner, for example with the landlord's lien from § 562 BGB, he can only sue for preferential satisfaction in accordance with § 805 ZPO. A lien on a right is a right of intervention according to § 771 ZPO.

The right of usufruct ( § 1030 BGB) also entitles to intervene insofar as it is endangered by the enforcement.

Fiduciary relationships

A fiduciary relationship exists when someone is bound by the requirements of a third party when exercising their own right. The former is referred to as the trustee , the latter as the trustor . To answer the question of who can bring a third party objection claim, a distinction is made between self-serving and disinterested (third-party) trust.

Disinterested (third-party) trust

In the case of the altruistic trust (also: administrative trust), the owner exercises one right for another. The trust remains in the trustor's assets. Only the trustor has the right to intervene. Example trust account : If a creditor of the trustee executes, the trustor is entitled to a third party objection action, since the object is part of his assets from an economic point of view. For this reason, the trustee cannot defend himself against enforcement by a creditor of the trustor via § 771 ZPO.

Self-serving trust

The self-serving trust (also: security trust) includes, in particular, security property and security assignment , classic cases of the transfer of rights for the purpose of securing loans .

The assessment of the legal position of the self-serving trust is controversial in both cases. According to the prevailing opinion, the collateral taker has a right to intervene in the collateral property if the seizure measures are available by the collateral provider's creditors. This is justified by the fact that security property is formally and materially fully effective property. Another view is that security property is to be treated like a non-possessory lien, with the result that it is at most entitled to an action for preferential satisfaction (§ 805 ZPO). This view can be supported by a transverse look at insolvency law: there, security property has a weaker position than other property, because according to § 51 No. 1 InsO it does not allow segregation, but only segregation , which functionally corresponds to the action for preferential satisfaction.

The prevailing opinion continues to assume that the security seller also has a right to intervene if seizure measures are carried out by the security taker's creditors; this in any case up to the point in time at which the collateral taker can realize the item. This view is opposed to the opinion that regardless of the maturity for exploitation, a right of intervention can only be given if the claim has been paid in advance or at the same time.

The same applies to cases of assignment of security.

Ownership of a claim or other property right

The ownership of a claim or another property right entitles the holder to intervene. The attachment of a claim that does not belong to the debtor is not possible. The owner of the claim can, however, remove the appearance of attachment by filing the lawsuit.

Claims under the law of obligations

Legal debt recovery claims on transfer of objects at about rent , lease , loan , custody or in order to convey exist, intervention rights.

The situation is different with mere procurement claims that result from purchase or bequest . Because the thing is still in the debtor's assets, the claim to procurement does not constitute a right of intervention.

possession

The possession of an immovable property is irrelevant for the substantive legal situation. Therefore he does not give the right to intervene.

It is controversial whether the possession of a movable thing entitles a third party to legal action. The prevailing opinion and jurisprudence affirm this in the case of legitimate (direct) possession. Another view does not give the right to intervene, since the property is only based on the exercise of actual property control and therefore cannot be part of the property.

Further rights

Rights of retention do not generally entitle to intervention. Exceptions apply to the right of retention according to § 1000 BGB and § 369 of the Commercial Code (HGB), since these give lien-like satisfaction rights from § 1003 BGB and § 371 HGB.

Finally, according to the insolvency code, the right of avoidance gives a right to intervene, since from an economic point of view it is close to a surrender claim.

Cases of inadmissible exercise of rights

The enforcement creditor can raise various objections to the third-party objection action, provided that the plaintiff is obliged to tolerate enforcement due to inadmissible exercise of the law. Different case groups have been developed for this purpose.

First of all, the creditor can fundamentally deny that there is a substantive right to intervene. In practice, it is often argued that there is a sham transaction ( Section 117 BGB) or a moral violation ( Section 138 BGB).

According § 9 avoidance law (AnfG) the creditor may be asserted in a different constellation case that the right of intervention by an actionable has been acquired legal action. Legal acts that are undertaken with the intention of disadvantaging the obligee , Section 3 (1) No. 1 AnfG, such as giving away objects ( Section 4 AnfG) in order to prevent the obligee from accessing them, are contestable . The burden of proof is on the obligee, which is why a comprehensive submission of facts is required. If someone is favored by the legal act, § 11 AnfG obliges him to surrender the performance obtained through the contestable legal act. Therefore, it would be an inadmissible contradictory behavior on the part of the plaintiff to defend against enforcement with the third-party opposition action.

Another significant case of inadmissible exercise of rights is when the plaintiff attempts the third-party action for the surrender of security property, although he is obliged to transfer ownership of the seized item back to the obligee or the debtor. A typical constellation is the submission of a loan and the securing of the same by the assignment of an item as security with a simultaneous agreement that the repayment of the loan leads to a return claim.

Furthermore, the defendant can object that the plaintiff himself is liable for the claim, for example as a surety or joint and several debtor .

Finally he be urged against the third party proceedings that he also deserves a right to the thing that in its ranking above that of the plaintiff is, as a priority lien ( § 1209 BGB).

Legal consequences

Effect of a well-founded third party objection claim

If the plaintiff has a right to prevent the sale at the time of the last oral hearing , his third-party action is well founded. According to § 775 No. 1 ZPO, this means that enforcement is inadmissible if it affects the plaintiff's right. According to Section 776 of the German Code of Civil Procedure (ZPO), the plaintiff can consequently demand that ongoing enforcement measures be discontinued and those that have already been taken to be canceled. Unlike in the case of a justified enforcement defense action ( § 767 ZPO), the foreclosure is not declared as inadmissible as a whole, but only in part.

The action has no suspensive effect, so it does not prevent execution of the foreclosure during the process. In order to prevent this, the plaintiff can apply to the trial court for an interim order in accordance with §§ 771 Paragraph 3, 769 ZPO .

Failure to bring a third party objection action until realization

If the person entitled to intervene does not file a third party objection claim, the seized item will be used. Movable items are publicly auctioned in accordance with § 814 ZPO, whereby they are sold to the highest bidder by knocking down in accordance with § 817 ZPO and transferred to him by delivery. Analogously to § 1247 BGB, the proceeds achieved by this take the place of the attached item by way of real surrogation , so that the person entitled to intervene can challenge it. This is possible as long as the proceeds have not yet been released to the creditor. According to this, the person entitled to intervene can be released from the obligee in accordance with § 812 Paragraph 1 Sentence 1 Alt. 2 BGB challenge the amount as an unjust enrichment, since it interferes with the law of the person entitled to intervene without legal grounds . This is a performance suit called the extended third party objection suit.

Cost burden

The decision on the legal costs is based on § 91 to § 107 ZPO. In principle, according to Section 91 (1) sentence 1 of the Code of Civil Procedure, the party that is subject to the legal dispute bears the costs. If the defendant is, however, not given by his behavior to bring an action event and it recognizes the claim immediately to fall according to § 93 ZPO the plaintiff's legal costs to the load. The plaintiff can avoid this by asking the creditor who initiated the attachment to surrender the pledged item. In doing so, he must substantiate his claims with appropriate evidence.

Third party action for prohibition of sale, § 772 ZPO

As long as there is a ban on sale of the kind specified in Sections 135, 136 of the Civil Code, the object to which it relates should not be sold or transferred by way of foreclosure due to a personal claim or due to a right that is ineffective as a result of the ban . Due to the prohibition of sale, an objection can be raised in accordance with § 771.

Section 772 sentence 1 ZPO stipulates that an item that is subject to a legal ( Section 135 BGB) or a judicial or administrative ( Section 136 BGB) prohibition on sale should not be sold in the context of foreclosure. Such a prohibition prohibits the disposition of a right. In the event of a violation, the disposition is ineffective against the person who is to be protected by the ban. According to Section 135 (1) sentence 2 of the German Civil Code, the prohibition of sale remains in effect if the item is sold in foreclosure. The associated legal uncertainty makes the acquisition of the item in the context of foreclosure unattractive, which is why it is likely that no adequate bid will be achieved at the auction. For this reason, § 772 sentence 1 ZPO wants to prevent such an auction from taking place.

Section 772 sentence 2 ZPO stipulates that the person who is protected by the prohibition of sale can bring an action against third parties in order to prevent the sale. The right to intervene follows from the legal position of the third party, which is protected by the ban on sale. In addition, he can complain about the violation of § 772 sentence 1 ZPO by means of an enforcement reminder or an immediate complaint ( § 793 ZPO).

Third party action for objection by a subsequent heir, § 773 ZPO

An object that belongs to a previous inheritance should not be sold or transferred by way of foreclosure if the sale or transfer is ineffective in relation to the subsequent heir in the event of the succession according to § 2115 of the German Civil Code. The subsequent heir can raise an objection in accordance with § 771.

Section 773 of the Code of Civil Procedure ties in with subsequent inheritance. Heir according to § 2100 of the Civil Code, who is appointed by the testator with the determination as heir that he only intended to take up his heritage after the provisional heir dies. If there is a foreclosure on his property, the subsequent heir runs the risk that his future inheritance will be reduced as a result. This risk is reduced by § 2115 BGB. According to this, a disposition that is made within foreclosure or insolvency proceedings on the assets of the previous heir is ineffective if it affects the inheritance right of the subsequent heir. The norm thus precludes the sale of the object in the context of enforcement proceedings. Section 773 ZPO contains a procedural regulation relating to this: According to this, an item about which a disposition would be ineffective due to Section 2115 BGB should not be sold. The regulation has a structure comparable to § 772 ZPO and also pursues the same purpose as this standard.

According to § 773 sentence 2 ZPO, the subsequent heir can prevent the sale by way of foreclosure by filing a third party action against this. In addition, as in Section 772 ZPO, he can complain of a violation of the procedural provisions of Section 773 sentence 1 ZPO.

Third party objection action by the spouse or partner, Section 774 ZPO

If the foreclosure of the common property takes place in accordance with Section 741, a spouse or civil partner can raise an objection in accordance with Section 771 if the judgment issued against the other spouse or civil partner with regard to the common property is ineffective against him.

Section 774 ZPO follows on from Section 741 ZPO and is important for communities of property . After this is sufficient for the enforcement in the common property of marriage or - life partners , who live in a community property title against one of the two partners, if it does not manage the common property alone and leads a purchase transaction. Section 774 ZPO enables the partner against whom the foreclosure is not directed to assert by means of a third party action that an object which was enforced under the conditions of Section 741 ZPO is not liable for the claims of the enforcement creditor. According to § 1460 BGB, this can be the case, for example, if the partner has not consented to the transaction from which the creditor's claim resulted.

Legal situation in other states

Austria and Liechtenstein

The third-party action corresponds Austrian law enforcement the Exszindierungsklage according to § 37 execution order (EO). It presupposes that the plaintiff has a right to a thing that is being enforced which is contrary to an execution . According to Section 37 (3) EO, the execution court is responsible for the action.

The action in Liechtenstein enforcement law is almost identical .

Switzerland

According to the Swiss Federal Act on Debt Enforcement and Bankruptcy (DEBA), third parties assert their claims on a thing in objection proceedings under Art. 106 - Art. 109 DEBA. Here, the third party registers his right to the debt enforcement office . If the object in question is in the debtor's sole custody, debtors and creditors can object to the rights of the third party in accordance with Art. 107 (1) DEBA. If they fail to do this, the right is deemed to exist. Otherwise, the third party can bring an action under Art. 107 Para. 5 DEBA to determine the right. If the thing is in the custody of the third party, creditors and debtors can sue according to Art. 108 Para. 1 DEBA that the third party's rights will be denied.

According to Art. 109 Para. 1 SchKG, the action is generally submitted to the court in whose district the prosecution takes place. If the action according to Art. 108 Para. 1 SchKG is directed against a person who is domiciled in Switzerland, it will be submitted to the court in which his domicile is located.

literature

  • Harald Böhm: Unjustified foreclosure and substantive compensation claims . Gieseking, Bielefeld 1986, ISBN 978-3-7694-0068-7 .
  • Tomas Kuhn: Right of replacement and third party right of objection . Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149618-9 .
  • Nikolaos Nikolaou: The protection of the property of third parties' movable property in enforcement auctions . Nomos, Baden-Baden 1986, ISBN 3-7890-2957-2 .
  • Eduard Picker: The third party objection suit in its historical development as an example of the interaction of substantive law and procedural law . Carl Heymanns, Cologne 1981, ISBN 978-3-7694-0068-7 .

Web links

Wikibooks: Law of civil procedure in the 2nd state examination: third-party complaint  - learning and teaching materials

Individual evidence

  1. ↑ Alexander Jüchser: custody - a term that does not make it easy . In: Journal for Legal Studies 2012, p. 195 (197–198).
  2. ↑ Olaf Muthorst: Fundamentals of the foreclosure law . 3. Edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-5796-1 , § 21 Rn. 55. Günter Handke: § 771 , Rn. 1. In: Johann Kindl, Caroline Meller-Hannich, Hans-Joachim Wolf (eds.): Entire right of foreclosure: ZPO, ZVG, ancillary laws, European regulations, costs: manual commentary . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1696-8 .
  3. ↑ Nicola Preuß: § 771 , Rn. 1. In: Volkert Vorwerk, Christian Wolf (Hrsg.): Beckscher Online Comment ZPO , 25th Edition 2017. Benjamin Leyendecker: Basic cases for third party actions according to § 771 ZPO - Part I . In: Legal worksheets 2010, p. 725.
  4. ↑ BGHZ 58, 207 (214).
  5. ↑ Rolf Lackmann: § 771 , Rn. 1. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 . Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 3. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Wolfgang Lüke: Law of civil procedure: criminal proceedings, foreclosure, European civil procedure law . 11th edition. CH Beck, Munich 2020, ISBN 978-3-406-72442-8 , Rn. 12.
  6. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 9. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Christian Seiler: § 771 , Rn. 2. In: Heinz Thomas, Hans Putzo (Ed.): Code of Civil Procedure: ZPO . 39th edition. CH Beck, Munich 2018, ISBN 978-3-406-71928-8 .
  7. ↑ Karsten Schmidt, Moritz Brinkmann: § 767 , Rn. 9. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Benjamin Leyendecker: Basic cases for third party claims according to § 771 ZPO - Part I . In: Juristische Arbeitsblätter 2010, p. 725 (727).
  8. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 11. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Peter Staufenbiel: Third party action for objection and action for preferably satisfaction . In: Juristische Arbeitsblätter 2005, p. 796 (800)
  9. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1400.
  10. ↑ Wolfgang Münzberg: § 771 , Rn. 64. In: Friedrich Stein, Martin Jonas (Ed.): Commentary on the Code of Civil Procedure. Vol. 7. Sections 704–827 . 22nd edition. Mohr Siebeck, Tübingen 2002, ISBN 978-3-16-148345-5 .
  11. ↑ Rolf Lackmann: Foreclosure law with the basics of bankruptcy law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5497-0 , Rn. 581.
  12. ↑ a b Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1405.
  13. ^ Johann Kindl: § 771 , Rn. 17. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  14. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 58. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 .
  15. ↑ Bernd Raebel: § 771 , Rn. 13-14. In: Winfried Schuschke, Wolf-Dietrich Walker (Ed.): Enforcement and preliminary legal protection: Comment . 6th edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28281-1 . Rolf Lackmann: § 771 , Rn. 9. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 . Christian Seiler: § 771 , Rn. 10-11. In: Heinz Thomas, Hans Putzo (Ed.): Code of Civil Procedure: ZPO . 39th edition. CH Beck, Munich 2018, ISBN 978-3-406-71928-8 .
  16. ↑ Benjamin Leyendecker: Basic cases for third party objection suits - Part II . In: Juristische Arbeitsblätter 2010, 879 (885–886).
  17. ↑ Günter Handke: § 771 , Rn. 12. In: Johann Kindl, Caroline Meller-Hannich, Hans-Joachim Wolf (eds.): Entire right of enforcement: ZPO, ZVG, ancillary laws, European regulations, costs: manual commentary . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1696-8 .
  18. ↑ In depth on the value in dispute Ulrich Foerste: The value in dispute of the third party objection suit . In: Neue Juristische Wochenschrift 2017, p. 2588.
  19. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1404.
  20. ↑ BGHZ 55, 20 . BGHZ 72, 141 (145).
  21. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1410. Rolf Lackmann: § 771 , Rn. 12. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 . Hans Gaul, Eberhard Schilken, Ekkehard Becker-Eberhard: Foreclosure law . 12th edition. CH Beck, Munich 2010, ISBN 978-3-406-59515-8 , § 41, Rn. 36.
  22. ↑ BGHZ 20, 88 .
  23. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1411.
  24. ↑ Wolfgang Münzberg: § 771 , Rn. 20. In: Friedrich Stein, Martin Jonas (Ed.): Commentary on the Code of Civil Procedure. Vol. 7. Sections 704–827 . 22nd edition. Mohr Siebeck, Tübingen 2002, ISBN 978-3-16-148345-5 .
  25. ^ BGH, judgment of July 1, 1970, VIII ZR 24/69 = Neue Juristische Wochenschrift 1970, 1733 (1735).
  26. ↑ Nicola Preuß: § 771 , Rn. 9. In: Volkert Vorwerk, Christian Wolf (ed.): Beckscher Online Comment ZPO , 25th edition 2017.
  27. ↑ BGHZ 55, 20 (27).
  28. ↑ Rolf Lackmann: § 771 , Rn. 17. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  29. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 30. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Rolf Lackmann: § 771 , Rn. 27-28. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  30. ↑ Olaf Muthorst: Fundamentals of the foreclosure law . 3. Edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-5796-1 , § 21 Rn. 71-74.
  31. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 35. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 .
  32. ^ Fritz Baur, Rolf Stürner, Alexander Bruns: Foreclosure law . 13th edition. Müller, Heidelberg 2006, ISBN 3-8114-3111-0 , Rn. 46.10. Johann Kindl: § 771 , Rn. 8. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  33. ↑ Wolfgang Münzberg: § 771 , Rn. 23. In: Friedrich Stein, Martin Jonas (Ed.): Commentary on the Code of Civil Procedure. Vol. 7. Sections 704–827 . 22nd edition. Mohr Siebeck, Tübingen 2002, ISBN 978-3-16-148345-5 .
  34. ↑ Wolfgang Münzberg: § 771 , Rn. 23. In: Friedrich Stein, Martin Jonas (Ed.): Commentary on the Code of Civil Procedure. Vol. 7. Sections 704–827 . 22nd edition. Mohr Siebeck, Tübingen 2002, ISBN 978-3-16-148345-5 .
  35. ↑ Wolfgang Münzberg: § 771 , Rn. 25-32. In: Friedrich Stein, Martin Jonas (Hrsg.): Commentary on the Code of Civil Procedure. Vol. 7. Sections 704–827 . 22nd edition. Mohr Siebeck, Tübingen 2002, ISBN 978-3-16-148345-5 .
  36. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 25. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Rolf Lackmann: § 771 , Rn. 21. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  37. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 49, Rn. 5. Ralph Weber: Property law I: Movable property . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 13 Rn. 1-2.
  38. ↑ BGHZ 12, 232 (234). BGHZ 72, 141 .
  39. ↑ Rolf Lackmann: Foreclosure law with the basics of bankruptcy law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5497-0 , Rn. 594. Michael Huber: Basic knowledge - civil procedure law: security property in foreclosure and bankruptcy . In: Juristische Schulung 2011, p. 588 (589-590).
  40. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 28-29. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Ulrich Hübner: On the dogmatic classification of the legal position of the conditional buyer . In: Neue Juristische Wochenschrift 1980, p. 729 (733-734). Frank-Holger Lange: Trust accounts in foreclosure and bankruptcy . In: Neue Juristische Wochenschrift 2007, p. 2513 (2515).
  41. ↑ BGHZ 72, 141 (146). Hans Brox, Wolf-Dietrich Walker: Foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1416. Hans Gaul, Eberhard Schilken, Ekkehard Becker-Eberhard: foreclosure law . 12th edition. CH Beck, Munich 2010, ISBN 978-3-406-59515-8 , § 41, Rn. 80.
  42. ^ BGH, judgment of December 8, 1976, VIII ZR 108/75 = Neue Juristische Wochenschrift 1977, p. 384 (385).
  43. ↑ Rolf Lackmann: § 771 , Rn. 20. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  44. ↑ Rolf Lackmann: Foreclosure law with the basics of bankruptcy law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5497-0 , Rn. 599.
  45. ↑ Nicola Preuß: § 771 , Rn. 30. In: Volkert Vorwerk, Christian Wolf (ed.): Beckscher Online Comment ZPO , 25th edition 2017.
  46. ↑ RGZ 127, 8 (9-10).
  47. ^ Hans Gaul, Eberhard Schilken, Ekkehard Becker-Eberhard: foreclosure law . 12th edition. CH Beck, Munich 2010, ISBN 978-3-406-59515-8 . Frank Spohnheimer: § 771 , Rn. 25. In: Bernhard Wieczorek, Rolf Schütze (Ed.): Code of Civil Procedure and Ancillary Laws. Vol 9: §§ 724-802 l . 4th edition. De Gruyter, Berlin 2015, ISBN 978-3-11-028474-4 . Wolfgang Münzberg: § 771 , Rn. 34. In: Friedrich Stein, Martin Jonas (Ed.): Commentary on the Code of Civil Procedure. Vol. 7. Sections 704–827 . 22nd edition. Mohr Siebeck, Tübingen 2002, ISBN 978-3-16-148345-5 .
  48. ↑ BGHZ 2, 164, 168 .
  49. ↑ Kurt Herget: § 771 , Rn. 14. In: Richard Zöller (Ed.): ZPO . 31st edition. Otto Schmidt, Cologne 2016, ISBN 978-3-504-47022-7 . Silke Scheuch: § 771 , Rn. 30. In: Hanns Prütting, Markus Gehrlein (Ed.): Code of Civil Procedure: Comment . 9th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-08998-8 .
  50. ↑ Karsten Schmidt, Moritz Brinkmann: § 771 , Rn. 38. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Nicola Preuß: § 771 , Rn. 29. In: Volkert Vorwerk, Christian Wolf (Ed.): Beckscher Online Comment ZPO , 25th edition 2017.
  51. ↑ Frank Spohn Heimer: § 771 , para. 29. In: Bernhard Wieczorek, Rolf Schütze (ed.): Code of civil procedure and ancillary laws. Vol 9: §§ 724-802 l . 4th edition. De Gruyter, Berlin 2015, ISBN 978-3-11-028474-4 . Silke Scheuch: § 771 , Rn. 31. In: Hanns Prütting, Markus Gehrlein (Ed.): Code of Civil Procedure: Comment . 9th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-08998-8 .
  52. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1425.
  53. ↑ Kurt Herget: § 771 , Rn. 15. In: Richard Zöller (Ed.): ZPO . 31st edition. Otto Schmidt, Cologne 2016, ISBN 978-3-504-47022-7 .
  54. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1431-1432.
  55. ^ Johann Kindl: § 771 , Rn. 20. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  56. ^ BGH, judgment of June 1, 1953, IV ZR 196/52.
  57. ↑ Christian Seiler: § 771 , Rn. 14a. In: Heinz Thomas, Hans Putzo (Ed.): Code of Civil Procedure: ZPO . 39th edition. CH Beck, Munich 2018, ISBN 978-3-406-71928-8 .
  58. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1418.
  59. ↑ Kurt Herget: § 771 , Rn. 18. In: Richard Zöller (Ed.): ZPO . 31st edition. Otto Schmidt, Cologne 2016, ISBN 978-3-504-47022-7 . Nicola Preuß: § 771 , Rn. 51. In: Volkert Vorwerk, Christian Wolf (Ed.): Beckscher Online Comment ZPO , 25th Edition 2017.
  60. ↑ Rolf Lackmann: § 771 , Rn. 9. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  61. ^ Johann Kindl: § 771 , Rn. 22. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  62. ↑ BGHZ 55, 20 .
  63. ↑ Olaf Muthorst: Fundamentals of the foreclosure law . 3. Edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-5796-1 , § 21 Rn. 94. Alexander Pfeiffer: Seizure and realization of non-debtor property . In: Juristische Arbeitsblätter 2012, p. 892 (894). Benjamin Leyendecker: Basic Cases for Third Party Opposition Actions - Part II . In: Juristische Arbeitsblätter 2010, 879 (885–886).
  64. ↑ OLG Düsseldorf, judgment of December 10, 1997, 11 W 85/97 = Neue Juristische Wochenschrift Jurisdiction Report 1998, p. 790.
  65. ↑ Wolfgang Münzberg: § 771 , Rn. 72. In: Friedrich Stein, Martin Jonas (Ed.): Commentary on the Code of Civil Procedure. Vol. 7. Sections 704–827 . 22nd edition. Mohr Siebeck, Tübingen 2002, ISBN 978-3-16-148345-5 . Johann Kindl: § 771 , Rn. 23. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  66. ^ Johann Kindl: § 772 , Rn. 1. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 . Karsten Schmidt, Moritz Brinkmann: § 772 , Rn. 2. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 .
  67. ↑ Karsten Schmidt, Moritz Brinkmann: § 772 , Rn. 19-22. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 . Rolf Lackmann: § 772 , Rn. 3. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  68. ↑ Karsten Schmidt, Moritz Brinkmann: § 773 , Rn. 1. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 .
  69. ^ Rolf Lackmann: § 773 , Rn. 2. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  70. ↑ Karsten Schmidt, Moritz Brinkmann: § 774 , Rn. 4. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 2: §§ 355-1024 . CH Beck, Munich 2012, ISBN 978-3-406-61032-5 .
  71. ↑ Marc Hunziker, Michel Pellascio: Refresher Bankruptcy and Insolvency Law . 2nd Edition. Orell Füssli, Zurich 2012, ISBN 978-3-280-07279-0 , p. 120-125 .