Non-attachability

In enforcement law , non-attachability means that attachment is prohibited by law .

General

The law enforcement is generally assumed that the creditors with the help of seizure access to the property of the debtor related assets will have to go through their recovery its due and unpaid by the debtor claims to compensate. However, as an exception, the law provides for certain barriers that limit seizure protection in the context of seizure protection. This protection against seizure has social reasons, is intended to prevent “seizure” and to ensure the protection of the debtor by maintaining his subsistence level . Seizure would be the seizure and realization of all assets of a debtor against which he can defend himself with the remedy of remembrance . The general seizability serves to protect creditors and the special seizure protection serves to protect debtors.

species

In the case of non-attachable items, a distinction must be made between non-attachable items and non-attachable claims / rights:

• According to § 811 ZPO (German Code of Civil Procedure), things that can not be seized are not subject to seizure, for example
  • items used for personal use or household purposes ( household items such as clothing , linen , beds , household and kitchen utensils ), even if the debtor needs them for his professional activity ;
  • the food , fire and lighting equipment required in the household for four weeks ;
  • items required to continue employment ;
  • A limited number of small animals ( pets ) and a dairy cow or, at the debtor's option, a total of two pigs , goats or sheep , if these animals are necessary for food.

The non-seizure of things concerns the “modest management of life and household” (§ 811 No. 1 ZPO), so that luxury goods can always be seized. What is part of a modest way of life and housekeeping is determined by traffic custom . Nowadays this includes refrigerator , washing machine and color television ; they cannot be seized.

• Non-attachable claims / rights
  • According to § 850 ZPO, labor income is subject to partial seizure protection. § 850a ZPO enumerates the non-attachable wages , § 850b ZPO the non-attachable pension , § 850c ZPO deals with a limitation of the seizability according to the amount, § 850d ZPO allows extended access to maintenance claims , § 850e ZPO regulates the calculation of the attachable income, Section 850f of the Code of Civil Procedure allows the enforcement court to adopt a different regulation in exceptional cases , Section 850i of the Code of Civil Procedure regulates the attachment of non-recurring services. At the request of the debtor, the enforcement court can order, in accordance with Section 850l ZPO, that the bank balance on a seizure protection account cannot be seized for a period of up to twelve months if the debtor can prove that in the last six months prior to the application, the account was overwhelmingly only unattainable amounts have been credited, and he makes plausible that even within the next twelve months only the vast majority of non-attachable amounts are to be expected.
  • In addition to earned income, there are numerous other claims that are subject to non-attachability. According to § 851 ZPO, a non- assignable claim can not be attached ( § 857 ZPO). According to § 399 Alt. 1 BGB Claims for which the performance to someone other than the original creditor cannot be made without changing their content (so-called highly personal claims, e.g. from family law obligations). Statutory prohibitions of assignment for highly personal rights also exist in Section 717 (2) BGB (mutual shareholder claims ) or Section 29 (1) UrhG (for copyrights ). Section 613 sentence 2 BGB (entitlement to service ), Section 664 (2) BGB ( execution of orders ) and Section 1059 BGB ( usufruct ) are regarded as “in case of doubt non- transferable ” . The Riester pension is exempt from attachment, unless the services provided by the debtor pension contributions actually state-by allowances or special expenses deduction be encouraged and not exceed the maximum, because the accumulated balances are in accordance with § 851 Abs. 1 ZPO in conjunction with § 97 sentence 1 EStG not transferable.
  • The tolerated account overdraft is also non-attachable because the mere tolerance of an account overdraft does not give the customer a attachable claim to credit against the bank .

The non-attachability results either from the fact that certain items are completely withdrawn from the seizure ( household effects ), or only some are classified as attachable ( seizure exemption limits for earned income).

Legal issues

The bailiff ex officio has to observe the non-attachability. It may not pledge, unless in exceptional cases the unpfändbare things exchange attachment ( § 811a , § 811b ZPO) or the anticipation attachment ( § 811d ZPO) are permitted. If other pledged objects are not available in sufficient quantities, he must, however, pledge the thing in case of doubts about the non-pledging (Section 72 business instructions for bailiffs GVGA NRW).

Statutory Liens

The non-attachability also affects the statutory liens such as the landlord's lien ( Section 562 (1) sentence 2 BGB), lessor lien ( Section 592 BGB) or the innkeeper lien ( Section 704 sentence 2 BGB). Landlords, lessors or innkeepers may only exercise their right of lien on attachable property of the tenant / lessee / guest for their due and unpaid claims. The exception is ordinary household effects that can be seized by these legal entities . In the case of the lessor's lien , the entrepreneur's lien ( § 647 BGB) and the commercial legal liens ( commission agent , carrier , forwarding agent and warehouse keeper ), however, there is no provision for non-attachability.

Bankruptcy proceedings

Items that are not subject to foreclosure do not belong to the bankruptcy estate according to Section 36 (1) of the Insolvency Code (InsO) .

Pledging

Non-attachable items can, however, be the object of a pledge , whereas non-attachable claims cannot ( § 400 BGB). The transfer of ownership by way of security (and of vehicles ) is not limited to attachable objects. Just as the debtor can dispose of non-attachable items without restriction, he can also use them as collateral .

equipment

The accessories of a property belonging to the property owner cannot be seized ( Section 865 (2) ZPO). Rather, it is subject to foreclosure on immovable property together with the property . For example, the bailiff may not seize the dairy and breeding cattle in the case of enforcement against the owner of a farm, and the machines intended for operation in the case of enforcement against the owner of a factory (§ 78 GVGA NRW).

Legal consequences

The non-attachable parts must remain with the debtor, otherwise he can defend himself against unauthorized attachments with the reminder of the reminder . For this purpose, the reminder of enforcement according to § 766 ZPO is available to him. The bailiff issues a certificate of non-attachability if he has reasonable grounds to believe that the debtor's foreclosure will be unsuccessful (§ 32 GVGA NRW).

Web links

• Garnishment exemption limits for earned income (pdf)

Individual evidence

1. ↑ Springer Fachmedien Wiesbaden (ed.), Compact Lexicon Economy , 2014, p. 295
2. ↑ Springer Fachmedien Wiesbaden (ed.), Compact Lexicon Economy , 2014, p. 561
3. ↑ BGH, judgment of November 16, 2017, Az .: IX ZR 21/17
4. ↑ BGHZ 93, 315, 325
5. ^ RG, judgment of April 20, 1931, Az .: VI JW 532/78, 710, 790
6. ↑ Patrick Brock: Non-attachability of movable objects (II) DGVZ 1997, pp. 65–70
7. ↑ Bernhard Wieczorek / Rolf A. Schütze / Wolfgang Lüke (eds.), Large Commentary on the Code of Civil Procedure and Ancillary Laws , Volume 4, Part 2, 1999, Section 812 Rn. 6th
8. ↑ Wolfgang Henckel / Walter Gerhardt (eds.), Großkommentar Insolvenzordnung , Volume 1: §§ 1-55, 2004, p. 1313 Rn. 43
9. ↑ BGH WM 1961, 243
10. ↑ RGZ 59, 87

Please note the information on legal issues!