In German civil law, the terms objection and defense denote material legal means of defense of the debtor against the realization of claims by the obligee . Objections and defenses have the effect that the claim either does not arise, expires or is not enforceable despite its existence.
A distinction is made between legal obstructive, legal destructive and legal obstructive objections.
Rechtshindernde objections prevent the occurrence of a claim, for example because the capacity ( BGB ) lack of the opponent or because a legal ban is ( BGB) that an effective transaction prevented from the outset.
Legal objection is also called defenses in the substantive legal sense. The special feature is that the claim that has arisen remains in place, but cannot be enforced if the debtor invokes it, which he is not obliged to do. As a so-called peremptoric objection , for example, the statute of limitations within the meaning of German Civil Code (BGB) can be asserted. Permanently because it then leads to a permanent unenforceability of the asserted claim. On the other hand, the so-called dilatory defense , for example, functions as the temporary defense of the non-fulfilled contract according to BGB, which only grants a right of retention as long as the service owed by the obligee has not yet been performed (temporary prevention of legal enforcement).
The last-described objection in the substantive legal sense is not to be equated with the objection in the procedural sense : In civil procedural law , an objection is understood to be any norm that can be raised against a claim in the process (reciprocal right). The procedural term of the objection thus not only includes the objections of civil law (including the objection in the substantive legal sense), but also counter-rights arising from civil procedural law (“procedural defenses”).
Ultimately, a distinction is made between the prerequisites for a claim and the means of defense against a claim for the purpose of appropriately distributing the burden of proof between the debtor and the creditor . Both are in a rule-exception relationship to each other: The eligibility requirements must always be met so that a claim can arise and exist. Objections and defenses are directed against the (alleged) claim or its enforcement. If the obligee asserts a claim, then he has to prove that the requirements of this claim are met. The debtor, on the other hand, has to prove the requirements for the existence of objections and defenses.
Classification of objections
Defense gives the opponent an opportunity to defend himself, he does not have to use it. The judicial knowledge of facts that conflict with the asserted claim does not matter, rather the opponent must regularly and expressly invoke the objection. For example, anyone who is sued for the fulfillment of a statute-barred claim has to decide for themselves whether to raise the statute of limitations objection that would lead to the dismissal of the claim. In the legal text, objections can be recognized by their formulation, because the law uses terms such as entitled or refusing to perform .
In contrast to the defenses, which only give the debtor a right to refuse performance, which does not affect the existence of the claim in essence, legal obstructive and legally destructive objections remove the claim itself. Objections that obstruct the right and destroy the law develop their effect by virtue of the law . They must be taken into account by the court ex officio . It is therefore sufficient for the court to find out about the relevant facts in order to take them into account in the judgment. In particular, it does not matter whether the plaintiff or the defendant submit them.
Some objections work against all or at least against many claims, regardless of their cause. Others, on the other hand, are specially tailored to specific requirements.
Objections that are obstructive to the law certainly do not allow a claim to arise, for example because the underlying contract is ineffective. The legal consequence is the invalidity of the underlying legal transaction from the start (ex tunc). In particular:
- Incapacity , , BGB or lack of ability to commit offenses , , BGB
- recognized reservation, S. 2 BGB
- Sham deal , BGB and joke , BGB
Formal ineffectiveness , BGB, z. B. Defect in form
- Donation according to (1) BGB
- Subrogation for a mortgage, Paragraph 1, BGB
- Violation of a prohibition law , BGB
- Immorality , BGB
- Partial invalidity, BGB
- Dissent , BGB
- Ineffective contract due to inconsistent declarations of intent: BGB, ff. BGB, BGB, other defects in declarations of intent
- Condition precedent that has not yet occurred or time before the start of a time limit, Paragraph 1, BGB
- Justification reasons , , BGB and grounds for exclusion of liability , against claims for damages from BGB
- Contributory negligence , BGB
- Missing due date Paragraph 2 BGB
- Protection regulations for general terms and conditions, ff. BGB
- Contracts on future assets and with reference to the estate of a third party who is still alive, Paragraph 2, 4 BGB
- Contractual penalty for an ineffective performance promise, , Paragraph 2 BGB
- Knowledge of non- guilt ( BGB) in relation to the enrichment claim according to para. 1 sentence 1 BGB (payment on non-existing debt)
- Objections of the withdrawer or interferer, BGB
- the right of possession ( surrender claim according to BGB BGB) in relation to the
- Objection to toleration by the owner Paragraph 2 BGB
- Restriction of testamentary freedom, BGB
- various regulations from protective laws, e.g. B. from the Dismissal Protection Act, Maternity Protection Act, General Equal Treatment Act, Social Security Code, Working Hours Act
- Violation of higher-level agreements: e.g. B. from collective agreement, works agreement
Objections that are destructive in law let the claim that has already arisen expire. In particular:
- Avoidance , Abs. 1 BGB. It is controversial here whether the challenge is not an objectionable objection: Although the challenge has an ex-tunc effect with regard to its legal consequences, the claim to enrichment that arises can be avoided because the legal reason (Section 812 (1) sentence 2 Variant 1 BGB) only explain this ex-tunc effect with a fiction, which leads to contradictions. It therefore makes sense to assume a subsequent annihilation of a claim that has arisen in the event of contestation (legal annihilation objection);
- Occurrence of a dissolving condition or expiry of the time limit , Paragraph 2, or expiry of time BGB;
- Contract cancellation or novation , repositioning of debt, , Paragraph 1 BGB
- Contributory negligence BGB;
- Impossibility of performance according to Paragraph 1 BGB;
- Claims for damages after setting a grace period, Paragraph 4 BGB;
- Disruption of the business basis (economic impossibility) BGB;
- termination in the case of continuing obligations , e.g. B. , , , Paragraph 2 BGB;
Resignation ff. BGB;
- (1) and (3) BGB
- Paragraph 1, , Paragraph 5 BGB
- Withdrawal in the case of fixed trade purchase, HGB (1) sentence 1
- contractual right of withdrawal, cf. but No. 3 BGB
- Impossibility of the consideration according to BGB;
- a foundation transaction until the legal capacity is recognized ( (3) BGB)
- in the case of declarations of intent that have not yet been received or that have been received at the same time ( BGB)
- a power of attorney ( , , BGB)
- for certain transactions requiring approval ( , BGB)
- consent ( , Paragraph 3 BGB)
- a gift ( BGB)
- an award ( BGB)
- of the client (or termination of the agent) ( BGB)
- an instruction ( BGB)
- Right of withdrawal in consumer protection ( ff., , , , , ff. BGB)
- Fulfillment , BGB;
- Performance in lieu of fulfillment, BGB;
- Deposit , BGB;
- Offsetting , BGB;
- Decree , BGB;
(possibly in conjunction with Paragraph 1 BGB);
- Objections of the debtor to the new creditor, § ff. BGB
- Must allow a performance by the debtor to the former creditor, BGB (cf. then para. 2 BGB);
- Expiry of the exclusion period for warranty for defects in travel law, Paragraph 1 BGB;
- Exemption of the surety if the surety creditor surrenders a security for the guaranteed claim, BGB;
- Depletion of enrichment in (3) of the German Civil Code (BGB) in relation to an enrichment claim;
- the confusion not regulated by law ;
- Limitation periods ;
- Forfeiture ( questionable whether not, similar to the statute of limitations, legal objection ), BGB;
- Objection by the debtor against the obligee's claim to performance in the case of a fixed trade purchase, HGB . (1) sentence 2
Defense (legal objection)
Objections leave the claim unaffected. In particular, it can still be fulfilled. But it is no longer legally enforceable, so it is inhibited.
Defenses that permanently inhibit the asserted claim, such as the statute of limitations, are called peremptorical defenses . If, on the other hand, they only delay the enforceability, they are called dilatory (e.g. deferment). They only develop their inhibitory effect once they have been asserted. In particular:
Statute of limitations , BGB
- "Legally destructive defense" against withdrawal, BGB; Resignation is not itself a claim i. S. d. Legal definition of BGB, but only another law, hence this special regulation; Other quite devastating observations raise claims to
- Counter-defense to the statute of limitations for withdrawal Paragraph 4 Sentence 2 BGB, Paragraph 4 2 BGB
- Plea of fraud in the case of statute-barred claims, BGB
Rights of retention , , , BGB, HGB
- esp. z. B. from disruption of the business basis BGB
- Unreasonableness of the debtor to perform (factual or personal impossibility), Paragraph 2 and Paragraph 3 BGB
- Objection of the non-fulfilled contract , , BGB
- Objection of uncertainty , BGB
- Objection of the debtor to the delivery of the assignment deed, BGB
- Unreasonableness of supplementary performance, Paragraph 4 BGB
- Objection of the donor's need for emergency, BGB
- Objection of the surety, ff. BGB
- the Dolo-agit objection based on BGB and required in BGB (defense of enrichment)
- the heir's defense, for example
- Objection of non-evaluation (non-payment) (e.g. a loan amount in the event of a claim to the toleration of a foreclosure of a land charge according to , BGB)
- Objection of unenforceability (e.g. a claim in the event of a claim to the toleration of foreclosure of a land charge, in particular because the claim was separated from the land charge, cf. BGB)
If a debt is paid, the enforceability of which is permanently ruled out by a (peremptoric) objection, what has been done can be reclaimed in accordance with(1) BGB if the person making the objection was not aware of it, BGB. However, this does not apply to the most common case of peremptorical objection: If payment is made on a statute-barred claim, surrender is excluded, (1) sentence 2, (2) BGB. The reason for this exception lies in the nature of the statute of limitations: after its occurrence, legal peace should prevail and a process no longer takes place, even if it is just a process about the reclamation of what has been achieved.
Burden of proof
Whether a certain feature is made a prerequisite for a claim by law or, conversely, the lack of the feature as a legal objection is initially the same in terms of effect: in both cases, the creation of the claim depends on this very feature.
The difference, however, becomes apparent in the process: while the person who asserts a claim must present the actual requirements and, if necessary, prove it, the burden of proof for the actual requirements of the objections rests with the defendant. By formulating elements of the offense or objections, the law also determines who bears the risk that what happened in court can no longer be clarified.
For example, representation obligation therefore did not put forward the injured and to prove necessary, but conversely the wrongdoer if he thinks that he is not responsible for the breach. It is also said that having to represent is (refutably) presumed . If, on the other hand, it were formulated "... the obligee can demand compensation for the resulting damage if the debtor is responsible for the breach of duty", the injured party would also have to prove this requirement. The law has actually decided elsewhere, for example in tort law under BGB.Paragraph 1 of the German Civil Code (BGB) formulates : “If the debtor violates an obligation arising from the contractual relationship, the obligee can demand compensation for the resulting damage. This does not apply if the debtor is not responsible for the breach of duty . ”The double negative in the second sentence is not an end in itself, but indicates that it is an objection that hinders the law. The
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