Enforcement waiver

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The term waiver of enforcement is a term from jurisprudence / legal practice. The term is not defined by law. This is generally understood to mean the declaration by the person entitled that an enforcement order will no longer be enforced. This declaration attained importance v. a. in civil law. Various situations are conceivable here in which an enforcement title (e.g. court judgment) subsequently becomes materially incorrect (e.g. payment judgment after fulfillment, maintenance title after a change in economic circumstances). The legal system provides for legal remedies for the title debtor in such cases (e.g. counterclaim for enforcement according to Section 767 of the German Code of Civil Procedure, amendment request according to Section 323 of the German Code of Civil Procedure or Section 238 of the FamFG). It is controversial whether the title creditor can achieve by declaring an (unconditional) waiver of enforcement that the legal protection interest is no longer applicable for such legal remedies . In case law this is affirmed as far as titles are concerned, in which recurring services are titled.

The background is evidently the consideration that titles on recurring services can regularly become materially incorrect. This is clear, for example. B. for maintenance titles in which the payment of monthly maintenance amounts is titled. If the maintenance debtor pays regularly, the title becomes (partially) materially incorrect every month, since the titled maintenance obligation for the month in question is fulfilled by the payment and expires. The case law apparently wants to avoid that in such cases a partial enforcement counterclaim or a partial amendment suit can be brought. Rather, it should be sufficient if the title creditor declares a (partial) waiver of enforcement. For example, if the maintenance creditor declares after payment for the month of May that he will no longer enforce the maintenance title for May (which in practice is often, but not always, a matter of course). From science / literature it is occasionally criticized that after declaring a waiver of enforcement, the need for legal protection for an enforcement counterclaim or amendment suit should cease to exist; It is more convincing not to deny the title debtor the need for legal protection, but to refer him (as an obligation to avert § 93 ZPO in the event of subsequent filing of an action) to initially suggest a description or exchange of the enforcement title according to §§ 724, 733 ZPO at his own expense.

The problem of the waiver of enforcement and its effects on the enforcement counterclaim of the debtor is currently experiencing a "renaissance". In recent times, an increasing number of counterclaims for enforcement have been brought against the enforceability of land charge deeds, albeit limited to the portion of the interest (which was included as ancillary claim) that was already statute-barred. The majority of the courts apparently want in these cases too, i. H. if recurring services are titled as ancillary claim and the enforcement counterclaim is limited to these, the need for legal protection for the enforcement counterclaim can be omitted in the case of a declared waiver of enforcement. The BGH recently let an opportunity for clarification pass for formal reasons. From the literature it is pointed out that even in the case of statute-barred interest on the land charges, the need for legal protection due to a waiver of enforcement should not be negated, but here, too, the title debtor (to avert § 93 ZPO in the event of later filing of a lawsuit) should be ordered to replace the debtor initially at his own expense Title according to §§ 724, 733 ZPO.

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Individual evidence

  1. ↑ fundamentally BGH, ruling v. February 8, 1984 - IVb ZR 52/82; later z. B. also OLG Munich, decision of December 3, 1998 - 12 WF 1327/98; OLG Hamm, decision of January 31, 2006 - 2 WF 12/06.
  2. ↑ Daniel Holznagel: waiver of enforcement, in particular of the maintenance creditor: Does the need for legal protection no longer apply for counterclaims and amendments? . NZFam (2/2014), CHBeck, 2014, pp. 58 - 63.
  3. ↑ Overview in Clemens Clemente, ZfIR 2013, 559; Sebastian Harter, EWiR 2013, 599.
  4. ↑ z. B. OLG Frankfurt, decision of February 25, 2013 - 24 W 2/13; OLG Celle, judgment of February 20, 2013 - 4 U 122/12; LG Mainz, judgment of December 3, 2013 - 6 O 75/13; however, OLG Celle, judgment of February 20, 2013 - 4 U 122/12; Saarbrücken Higher Regional Court, decision of May 13, 2013 - 4 W 19/13.
  5. ↑ BGH, decision of March 6, 2014 - V ZB 35/13: the initial decision does not provide a sufficient description of the facts of what needs to be made up.
  6. ↑ Daniel Holznagel: waiver of enforcement, in particular of the maintenance creditor: Does the need for legal protection no longer apply for counterclaims and amendments? . NZFam (2/2014), CHBeck, 2014, pp. 58 - 63.