Litigation guarantee

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With the litigation guarantee , the issuing surety assumes liability in civil proceedings in the event of provisionally enforceable judgments for financial damage resulting from the avoidance or execution of foreclosure .

General

The litigation guarantee is only used in very specific situations, namely in civil proceedings. A party has to provide security in civil proceedings if it wants to make use of a certain procedural authority or if it wishes to use a certain procedural advantage for itself. The security deposit serves to protect the opposing party from impending or possibly occurring financial damage.

To get out of a judgment to be enforced, it must be by the court either by the expiration of the time for appeal formally legally binding ( § 705 ZPO ) or provisionally enforceable be been explained (§ § 708 et seq. ZPO). The judgment to be enforced must have an enforceable tenor . Mainly only from a power suit resulting performance judgments (tenor: " The defendant is ordered to pay ... / surrendered to the plaintiff / refrain ... ") enforceable, but not of design or declaratory judgments .

Judgments that are final and cannot be challenged by legal remedies can be enforced immediately in civil proceedings. The winning party can then demand payment from the losing party based on the judgment, which can be enforced through foreclosure if necessary. Non-final judgments can - but do not have to - be declared provisionally enforceable by the court . This means that under the conditions of §§ 708 ff. ZPO, the prevailing party is entitled to enforce the claims assigned to it in the provisionally enforceable judgment, if necessary by means of enforcement, until a final judgment has become final. This avoids that legal enforcement is delayed by filing an appeal. In doing so, the legislature has recognized that this represents a considerable material risk for the party who has lost the first instance. If it wins in the last instance, there is a risk that it will no longer receive the payment made on the basis of the first instance judgment from the opponent because the latter has meanwhile become insolvent . A foreclosure without security would result in an irreparable disadvantage. In order to eliminate this risk of recovery, the court can order in the judgment that the judgment is provisionally enforceable either with or without security. Section 708 ZPO names a large number of judgments that are to be declared provisionally enforceable without security being provided, while Section 709 ZPO stipulates that other judgments are only to be declared provisionally enforceable against a security to be determined in terms of amount. This security deposit can also consist in the provision of a process guarantee (bank guarantee or guarantee from an insurance company as part of the deposit insurance ). If judgments have been declared provisionally enforceable without the prevailing party being required to provide security, the debtor can for his part avert enforcement under Section 711 ZPO. This is also done by means of a process guarantee, which grants the prevailing creditor security for his enforceable claim. In this way, the law protects the creditor from the insolvency risk of the unsuccessful debtor.

Legal issues

When ordering procedural security, the court can determine at its own discretion , in accordance with Section 108 (1) ZPO , the type and amount of security to be provided. Insofar as the court has not made a provision and the parties have not agreed otherwise, the security must be provided by a written, irrevocable, unconditional and unlimited guarantee from a credit institution authorized to conduct business in Germany or by depositing money or such securities, which according to § 234 para. 1 and 3 BGB are suitable for providing security.

The content of the litigation guarantee cannot generally be determined, but depends on the purpose of the order. What a litigation guarantee is liable for depends largely on the purpose for which the litigation guarantee has been issued. This arises from Section 707 (1) ZPO (temporary suspension of foreclosure), Section 709 ZPO, Section 732 (2) ZPO, Section 766 (1) sentence 2 ZPO, Section 769 (1) ZPO, Section 770 (1) ZPO or Section 771 (3) ZPO ( third party objection suit ). The litigation guarantee is also an accessory .

species

The litigation guarantee is used either to carry out or to avert foreclosure.

  • Execution of foreclosure : The surety undertakes to ensure that the amount of money received from the prevailing creditor in the context of a judgment-related enforcement is repaid to the debtor if the latter wins in the next instance . The victorious plaintiff can pursue foreclosure against the defendant after this guarantee is available.
  • Avoidance of foreclosure : The surety undertakes to ensure that the defendant debtor pays the debt amount specified in the judgment in the event that the judgment is confirmed by the next instance. By handing over this guarantee, the defendant can initially avert foreclosure in order to exhaust further legal remedies. The court can determine that the debtor may avert enforcement by providing security (bank guarantee) if the obligee does not provide security prior to enforcement (Section 708 No. 4 to 11 ZPO).

If the litigation guarantee enables the provisional enforceability of a judgment, it secures the debtor's future claim for damages under Section 717 (2) ZPO. Should the procedural guarantee prevent the provisional enforceability, it secures the enforceable - not the material - claim of the obligee. Both types serve to hedge the risk of insolvency for the respective opponent.

Legal consequences

The aim of litigation guarantees is a fair distribution of the insolvency risk. The security purpose of a litigation guarantee to avert compulsory enforcement within the meaning of § 711 ZPO does not consist in securing the material claim, but in the enforcement authority of the title creditor created by the title . Such a procedural guarantee is intended to represent an appropriate compensation for the obligee's waiver of the provisional enforcement that was actually permitted to him and thus secure the enforcement authority that he has acquired through the judgment. If the obligee provides a process guarantee for the execution of the foreclosure, he hereby waives the enforcement authority he is actually entitled to. It follows that the title creditor is no longer allowed to enforce the judgment in his favor because of the litigation guarantee, so that the title debtor is no longer obliged to hand over a litigation guarantee in order to avoid the foreclosure. However, if the obligee does not provide a guarantee to carry out the foreclosure, he may have it enforced, unless there is a process guarantee from the debtor to avoid the foreclosure.

Termination of the litigation guarantee

A final judgment eliminates the risk of financial loss, so that there is no longer any reason to be covered by a litigation guarantee. At the request of the obligee, the court orders the expiry of a litigation guarantee ( Section 715 (1) ZPO), the court has to order the expiry of the litigation guarantee ( Section 109 (2) ZPO) and the original of the guarantee document must be returned to the issuing surety . The guarantee commission for a litigation guarantee is one of the costs of foreclosure.

Individual evidence

  1. Claudia Mayer, Security provided by bank guarantee in civil proceedings , 2009, p. 2
  2. Claudia Mayer, Security provided by bank guarantee in civil proceedings , 2009, p. 2
  3. BGHZ 69, 270 , 272
  4. ^ BGH WM 1975, 424, 425
  5. BGHZ 69, 270
  6. Uwe Gottwald, Zwangsvollstreckung , 2005, p. 99 ff.
  7. BGH NJW 2005, 2157
  8. Kurt Schellhammer, Law of Obligations according to Claim Basis , 2018, p. 474
  9. BGH NJW 2005, 2157
  10. BGH NJW 1975, 1119 , 1121
  11. ^ BGH, decision of December 3, 2007, Az .: II ZB 8/07 = BGH WM 2008, 276