Procedural action according to § 767 Abs. 1 ZPO analog

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The procedural structural action according to § 767 Abs. 1 ZPO analog is a legal remedy in the area of enforcement with which the debtor can assert that the enforcement title directed against him is ineffective.

admissibility

Admissibility

Objectives of action

The procedural structural action according to § 767 Abs. 1 ZPO analog is admissible if the plaintiff (here the debtor ) desires to declare the foreclosure to be inadmissible and to raise objections to the validity of the title.

Three constellations are possible:

  • The Federal Supreme Court originally developed this general action for the constellation " in which a title that is effective in terms of its external appearance is ineffective for formal reasons without this being apparent from the title content ".
  • In the meantime, the lawsuit is also admissible if the ineffectiveness can be found in the title for formal reasons (example: recognizably undefined title)
  • It is also permissible if the title is ineffective for material legal reasons (example: ineffective declaration of submission in property development contracts).

Demarcation

It is therefore to be distinguished from the enforcement defense action ( Section 767 ZPO direct), in which substantive legal objections are asserted against the underlying claim - and not against the validity of the title itself.

According to the plaintiff's request, there is therefore a relationship to the reminder of the clauses ( § 732 ZPO), in which the effectiveness of the title is also attacked. Both legal remedies can be allowed side by side. The debtor therefore has a right to choose.

Competent court, need for legal protection

With regard to the questions of the competent court and the need for legal protection, reference can be made to the statements in the action against enforcement because of the analogy to § 767 ZPO .

Admissibility of the isolated structural action analogous to Section 767 (1) ZPO

The procedural structural action according to § 767 Abs. 1 ZPO analog can also be filed in isolation from an enforcement action ( § 767 ZPO direct). But it is also possible to combine it with an enforcement action.

Justification

The lawsuit is justified if the title is ineffective due to recognizable and / or non-recognizable, formal defects or material-legal defects. In contrast to the enforcement action, it is irrelevant whether the objections under Section 767 (2) and (3) ZPO are excluded , because Section 767 (2) and (3) ZPO do not apply to this action.

Examples

Case 1 : B files a partial action against A for payment without specifying the facts at issue. A is sentenced according to the application, the judgment becomes final. A can now successfully proceed against the foreclosure from the judgment with the action according to Section 767 (1) ZPO, because it is not clear which claim was decided on and the title is therefore ineffective for formal reasons that are not apparent from the title.

Case 2 : B obtains a final judgment against A, the tenor being too vague. A can now successfully proceed with the action according to Section 767 (1) ZPO against the foreclosure from the judgment because the title is ineffective due to the uncertainty for formal reasons evident from the title.

Case 3 : A buys a house with land from B. B has a pre-formulated contract for these transactions, according to which the buyer (here A) submits to immediate foreclosure before the purchase price is due. This clause is ineffective according to Section 307 (2) BGB . A can now successfully defend himself against the foreclosure by filing a lawsuit pursuant to Section 767 (1) ZPO, because the title itself is ineffective.

Individual evidence

  1. ↑ a b c d Lackmann in Musielak ZPO, 8th edition 2011, § 767, Rn. 9b
  2. ↑ Oberlandesgericht Koblenz NJW-RR 2002, 1509, 1510
  3. ↑ BGH NJW 2002, 138 ff.
  4. ↑ BGH NJW 2006, 695, 696; NJW-RR 2004, 1718 f.
  5. ↑ BGH of August 23, 2007, Az.VII ZB 115/06 .
  6. ↑ BGH NJW 1994, 460, 461 f.
  7. ^ BGH, judgment of November 18, 1993, Az. IX ZR 244/92
  8. ^ The case is the comment by Lackmann in Musielak ZPO, 8th edition 2011, § 767, Rn. 9b taken.