Third party notice
The party notice is a means of German civil procedure by which a previously interested third parties will be formally notified of any pending process. It is regulated in § 72 to § 74 of the Code of Civil Procedure (ZPO).
purpose
Through the third party notice, the involvement of a third party in a legal dispute is brought about. The purpose is to bind the third party to the decision of the process in the event of any follow-up legal proceedings against this third party.
effect
The starting point of the third party announcement is that a party in a current process (so-called preliminary process) must fear an unfavorable outcome for it, on the other hand, in this case, can expect to be able to assert a "claim for warranty or indemnification" against a third party ( § 72 ZPO) .
The following example illustrates this:
- Contractor U has committed to building a house in a work contract with client B. U does not build the roof structure himself, but has it built by carpenter Z as a subcontractor. B now claims that the roof structure is not sufficiently stable and is suing U for the defect to be remedied. If U is convicted, he can, on the basis of the separate work contract concluded with Z, assert claims against Z due to defects in the roof structure for which Z is responsible.
The interests of U are therefore either not to lose the preliminary litigation against B (although Z's accession as an intervener may be useful to him), or, in the event that the preliminary litigation is lost, at least by winning the subsequent litigation against Z himself to be held harmless.
Party notices (Litisdenunziation) is now defined by U as Streitverkünder pronounced (Litisdenunziant) notifying the Z ( party notices receiver or frequently armed Announced (Litisdenunziat) called) from the pending between B and U litigation. It takes place by submitting a pleading to the court of the pre-litigation and is served by the court to the recipient of the dispute, § 73 S. 1 and 2 ZPO. Often the third party notice is combined with the request to the recipient to join the third party in the process as an intervener ( secondary intervener ), but this is not necessary.
It should be noted that the third party notice as such (in contrast to secondary intervention) has no further effects in the preliminary process. The third party notice does not become a party to the litigation solely through the third party notice; no costs can be imposed on him. The process will continue regardless of the third party notice. It is only different if the recipient of the third party announcement joins the third party (or the other party) as an intervener (secondary intervener). Then he will process participants with the ability to process actions make and appeal appeal. His position is then based on the rules of side intervention.
The procedural significance of the third party notice consists primarily in its effect on the follow-up process. It lies in the fact that, according to Section 74 (3) of the ZPO, the effect of the secondary intervention in accordance with Section 68 of the ZPO applies to the third party announcement even if there is no accession as a secondary intervener . Applied to the case of the third party announcement, the decisive passage reads: " The third party recipient is not heard in the follow-up process in relation to the third party with the assertion that the preliminary process, as it was before the judge, was incorrectly decided" . This means that in the subsequent process, in favor of the third party, there is a bond with the result of the preliminary process.
For the example above, this means:
- If it was determined in the preliminary process after taking evidence by an expert that the roof structure was defective, this result can no longer be questioned in the subsequent process, the court is bound by this. The third party publisher U will therefore be able to enforce his claims against Z due to the action of the third party due to the defective roof structure and does not have to fear, for example, that in the subsequent process the court may come to the conclusion with regard to the roof structure on the basis of a new evidence that a defect did not exist .
admissibility
Whether the third party notice is permissible as such will only be checked in the subsequent process. Basically, the pre-litigation must be pending ; the dispute does not have to be pending . In principle, both parties can announce the dispute.
The third party announcement is also permissible in the independent evidence procedure (§ § 485 ff. ZPO). The taking of evidence then works for and against the third party in accordance with Section 68 of the German Code of Civil Procedure, the statute of limitations is suspended.
Procedure and form
The third party announcement ( § 73 ZPO) must be made in writing or, in exceptional cases, in the event of disputes before the local court, it can also be made in the minutes of the office. The declaration must not have a condition and must contain the reasons for the third party notice. The location of the legal dispute with decisions and legal remedies must also be indicated. The third party notice is then served ex officio through the court. With the delivery, the statute of limitations is materially and legally suspended ( Section 204 (1) No. 6 BGB ). In terms of commercial law, the warranty rights according to § 414 Paragraph 3, § 423 , § 439 HGB are preserved.
The third party to whom the dispute has been announced can join the dispute on the part of the plaintiff or the defendant. He can also continue to announce the dispute without having to join himself. With the delivery, however, all determinations become binding if the dispute has been effectively announced. Should he join, then the provisions of secondary intervention ( intervention ) apply to him in accordance with Section 74 (1) ZPO .
costs
The legal fees for the third party notice are included in the procedural fee. Since the intervener is not a party to the dispute, the decision on costs cannot be against him. If you join as an intervener, the provisions on the costs of secondary intervention apply ( Section 101 ZPO).
Demarcation
The legal institution of side intervention ( intervention ) is closely related to the third party notice.
In social and administrative procedural law, the third party notice takes the place of the summons .
See also
Web links
- Dieter Knöringer: The Dispute Resolution, §§ 72-74 ZPO JuS 2007, pp. 335–341
Individual evidence
- ↑ consistent case law, see BGH, decision of February 8, 2011 - VI ZB 31/09, NJW 2011, 1078 with further evidence
- ↑ OLG Cologne, decision of July 15, 2015, 11 W 39/15, NJW 2015, 3317 with comment Kaiser
- ↑ BGH, judgment of October 4, 1984 - VII ZR 342/83, NJW 1985, 328
- ↑ BGH, judgment of December 5, 1996 - VII ZR 108/95, NJW 1997, 859
- ↑ BGH, judgment of December 5, 1996 - VII ZR 108/95, NJW 1997, 859
- ↑ BGH, judgment of January 19, 1989 - IX ZR 83/88, NJW-RR 1989, 766
- ↑ Weth in Musielak ZPO, 11th edition 2014, § 73 Rn. 3
