Enforceable document

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Copy of an enforceable deed stating the maintenance obligation

In an enforceable document is one of the in § 794 , para. 1, no. 5 Civil Procedure said (ZPO) enforcement , from which as the final decisions from execution takes place. As with litigation , the title is created through a voluntary act by the debtor. In the majority of cases, the establishment takes place in front of a notary .

The subject of the document can be any enforceable claim under private law , but not one that concerns the submission of a declaration of intent or the existence of a rental agreement . This entitlement (for example to the payment of a sum of money) must be described in sufficient detail in the certificate.

As part of the notarial certification of property purchase contracts , the buyer usually submits to immediate enforcement from the purchase contract document in his entire property because of the payment of the purchase price . This ensures that if the buyer is in default , the seller does not first have to go to court for payment, but can instead directly pursue enforcement against the defaulting buyer in the same way as from a court judgment.

Another practically important case of the enforceable deed relates to the securing of a loan by a mortgage ( mortgage , mortgage ). In this case, the order of the real estate lien requires the notarial certification of the signature in order to be entered in the land register ( § 29 GBO ). In these cases, the document - especially in the case of bank loans, regularly in form - contains the property owner's declaration of submission due to the real claim from the real estate lien ( Section 1147 , Section 1192 (2 ) BGB ). This ensures that the creditor - i.e. the financing bank - does not first have to sue the defaulting borrower for toleration of the foreclosure of the encumbered property, but can take immediate enforcement measures. In the case of the land charge, the owner generally also assumes personal liability with his entire property with regard to the nominal land charge amount. This abstract promise of debt according to Section 780 of the German Civil Code (BGB) establishes a further claim by the obligee, because of the fulfillment of which the obligee can enforce the document. In the event that the loan is not repaid, the obligee is given comprehensive enforcement access to all other assets of the debtor.

Another practical situation is that the debtor is unable to meet an undisputed debt for financial reasons. Instead of being sued for payment by the creditor at comparatively high costs, the debtor can obtain an acknowledgment of debt from the notary at low cost and submit to enforcement. If the obligee receives the enforceable copy of this document, there is no need for legal proceedings, as he can enforce from the document in the same way as from a judgment. The debtor expediently combines the sending of the deed with an offer to pay in installments, in order to prevent the obligee from enforcement and the associated costs at the same time.

The declaration of submission of the debtor is to completely predominant understanding a unilateral procedural declaration of intention . Therefore, the rules are the §§ 104 ff. BGB not directly applicable. Rather, the procedural requirements apply ( §§ 50 ff. ZPO). Representation is possible ( Section 85 (1) sentence 1 ZPO).

The notary who keeps the document is responsible for issuing the enforceable copy ( Section 797 (2) ZPO). In principle, he does not have to check the material requirements of the claim to be enforced. In Section 54 of the BeurkG, the obligee has a special opportunity to lodge a complaint against the refusal to issue a clause . On the other hand, the debtor can contest the provision of the clause according to the general principles, i.e. by reminder ( § 732 , § 795 , § 797 Paragraph 3 ZPO) or by counterclaiming clause ( § 768 , § 795 , § 797 Paragraph 5 ZPO). The ineffectiveness of the document for material reasons can also be asserted with a lawsuit analogous to § 767 ZPO.

The youth welfare offices set up documents free of charge in which a maintenance debtor undertakes to pay child maintenance to underage children in a certain amount in an enforceable manner (see the figure above). The maintenance can also be dubbed dynamically, i.e. in such a way that it automatically increases with the age of the child and with other increases in the maintenance rates. If the debtor then suspends payment at some point, the person in need of maintenance can enforce the payment immediately and does not have to go to the family court first . Such documents, like other maintenance titles, are subject to amendment in the event of a significant change in circumstances, for example if a child moves to the household of the maintenance debtor, if his or her needs are reduced by taking up company training , if the debtor has to pay more due to increased income, etc. . Ä.