from Wikipedia, the free encyclopedia

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.


Systematics of defense in the procedural sense

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 ( § 104 BGB ) lack of the opponent or because a legal ban is ( § 134 BGB) that an effective transaction prevented from the outset.

Objections that are destructive in law invalidate a claim that has arisen or change it, for example through fulfillment ( § 362 BGB) of the contract or due to withdrawal ( § 346 BGB) from the same.

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 Section 214 of the 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 Section 320 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.

Obstructive Objections

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:

Destructive Objections

Objections that are destructive in law let the claim that has already arisen expire. In particular:

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:

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 Section 813 (1) BGB if the person making the objection was not aware of it, Section 814 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, Section 813 (1) sentence 2, Section 214 (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, Section 280, 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 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 Section 823 BGB.


  • 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.
  • Wolfgang von Reinersdorff: On the dogmatics of objections penetration , University of Bonn, dissertation 1983, Duncker & Humblot, Berlin 1984, ISBN 3-428-05643-4 .
  • Herbert Roth: The defense of civil law , University of Munich, habilitation thesis 1986, Beck, Munich 1988, ISBN 3-406-33067-3 .
  • Wilhelm Weimar: Basis of claims, defenses, objections , (systematics: legal relationships and subjective rights, claims, competition of claims, defenses and objections, real and mandatory rights, design rights), Deutscher Sparkassenverlag, Stuttgart 1969.