Pretender dispute

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The pretender dispute describes a certain constellation in civil proceedings , namely that two claimants ( pretenders ) are arguing over the same matter . In such a case, the debtor has the role of the defendant, while one of the pretenders is the plaintiff and the dispute is announced to the other pretender .

If his performance is undisputed, the debtor can get rid of such a dispute by depositing it . In this case, he will be released from the legal dispute and the process between the pretenders will be continued, so that the victor will receive the benefit ( Section 75 ZPO ).

The party roles change in the stages of a pretender dispute:

  • In the beginning, the pretending creditor is the plaintiff and the debtor is the defendant.
  • The dispute can then be announced to the second pretender, with the request to join the legal dispute on the part of the defendant as a secondary intervener . He then becomes the defendant's intervener ( Section 66 ZPO).
  • If this takes place, the defendant debtor can deposit the matter with the competent authority and declare that he waives a withdrawal ( § 376 , § 378 BGB ). He is then released from the trial by the court and is no longer a party.
  • In the continuation of the process, the previously plaintiff remains the plaintiff and is now applying to award him the deposit. The other pretender changes to the role of the defendant and applies for the dismissal of the action and quasi- counter-complaint he applies to award him the deposit.

The unsuccessful pretender bears all costs with the exception of possible costs of the debtor due to an unjustified objection.

The function of the pretender dispute consists u. a. in the procedural protection of the debtor against joint creditors (cf. § 428 BGB) or a majority of creditors (cf. § 432 BGB), i.e. when he owes one thing to several people or owes them to several jointly and indivisibly. Although in the first case he can deliver to each of the creditors with a liberating effect, he bears the risk of the accuracy of his performance, which is sometimes beyond his sphere of knowledge and influence.

In a substantive legal sense, the debtor has given an unconditional, alternative acknowledgment , but from a procedural point of view, no judgment of acknowledgment may be issued.

According to German law, the pretender dispute is not foreseen for all claims targets that cannot be deposited (such as injunctive relief , action, submission of a declaration of intent , tolerance, etc.); it cannot be conducted even if the debtor acknowledges an alternative.

In the case of dismissal, i. H. if the court does not award any of the pretenders the deposit, a follow-up procedure is planned. In such a case, the debtor must again sue for consent to the withdrawal. The background is that according to German law, a deposit can only be made in favor of the pretender and a deposit only has fulfillment effect if an exclusion of redemption is declared (cf. § 75 ZPO, § 378 BGB).

Individual evidence

  1. ↑ cf. BGH KTS 81, 218