Actionability

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Actionability means that a legal claim can be asserted in court by way of a lawsuit . The actionability of the asserted claim is a litigation requirement , the absence of which leads to the inadmissibility of the action brought.

Lack of actionability

The actionability of claims is the rule, non-actionable claims the exception. For example, the fiancé's right to enter into marriage , Section 1297 (1) BGB, the right to remuneration for a marriage brokerage , Section 656 BGB, the right to consent to the rent increase during the deliberation period due to the tenant, the fee claim from a lawyer or Tax advisor before issuing an invoice, § 10 RVG, § 9 Abs. 1 StBGebV. Proceedings within the meaning of § 15a EGZPO are also not actionable if arbitration is prescribed and not carried out.

Things are different if actionability is (temporarily) excluded within the framework of a party agreement: in this case, the lack of actionability is an objection to be asserted before the start of the oral hearing . If a claim is opposed by a legal peremptorical objection , the debtor can prevent the assertion of the claim by raising the same, according to § 275 paragraphs 2 and 3 BGB, § 821 BGB, § 853 BGB and in the case of limited heir liability.

The only lack of actionability of the performance claims

Debt contracts that create imperfect or no liability at all from the outset , called natural bonds in many legal circles , do not give rise to action , at least with regard to the performance claims. Will they met, what they have achieved on the other hand not as indebitum kondiziert be. A classic example is the bet in the sense of § 762 BGB.

Comparable to this are the cases of non-formal debt contracts that become effective through fulfillment (performance); they are also not actionable. This includes the completed promise of donation under Section 518 (2) of the German Civil Code (BGB) or the redeemed main claim in the event of a previous lack of written form of a guarantee statement, Section 766 (3) of the BGB.

Claims due to other breaches of duty such as poor performance remain unaffected in the cases mentioned . The Federal Court of Justice has even expressly approved this.

literature

  • Götz Schulze : The natural obligation: legal figure and instrument of legal relations then and now - at the same time laying the foundation for a doctrine of claims under civil law , Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149407-9 (also Heidelberg University, habilitation thesis 2007).

Individual evidence

  1. ^ Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2015, ISBN 978-3-8006-3908-3 , Rnr. 39.
  2. ^ Dieter Medicus: Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen: Vahlen, Munich 2015, ISBN 978-3-8006-3908-3 , Rnr. 40.
  3. ↑ BGHZ 25, 124.