step by step
Train to train designated German law of obligations the performance that the debtor the creditor is not necessarily committed but directed against him claim is subject to a performance by the creditor on his part. In the case of a step-by-step performance, the creditors and debtors of an obligation are only obliged to provide the performance if the other side has also done the necessary, for example, has offered its performance. The meaning and purpose of the step by step obligation is to give one of the parties involved in the exchange of goods protection against performing his service but not receiving the other's service at the same time.
A step-by-step fulfillment is excluded if one of the contracting parties is obliged to perform in advance according to the agreements made . The concept of simultaneity must not be understood in the strict scientific sense. For example, when buying bread rolls on a daily basis over the baker's counter in return for payment of cash, from a legal point of view, the parties pay at the same time, even if the bread rolls are first handed out and then the money is accepted. If, on the other hand, one service (the granting of use) is spread over a certain period of time - as is the case with rent , for example - while the other (the payment of the rent) is to be provided in one act, at least one party is necessarily obliged to perform in advance.
Creation of performance obligations step by step
The obligation to train to train and can be either from the outset since the inception of the obligation, the obligation to restrict it as such. In most cases, however, the obligation to perform arises step by step because the debtor limits the claim against him by raising an objection . The most important cases for this in German law, as an expression of the synallagma, is the objection of the non-fulfilled mutual contract ( § 320 BGB ).
Effects in litigation
If the debtor is only obliged to performance train to train, so does that in civil proceedings both in the realization process and in the execution of.
Cognitive process
According to Section 274 of the German Civil Code ( BGB) for the right of retention and Section 322 (1) of the German Civil Code (BGB) for mutual contracts, the operative part of the judgment expressly states that the obligation only exists step by step against the fulfillment of an obligation by the obligee.
- Example: The defendant is sentenced to pay the plaintiff € 15,000 step by step against surrender and transfer of ownership of the vehicle.
Enforcement proceedings
Such a conviction to perform step by step then affects the foreclosure according to § 756 and § 765 ZPO stipulate that the bailiff and the enforcement court may not begin enforcement as long as the debtor has not received the performance due or has been offered in a manner justifying the default of acceptance . Fulfillment or default in acceptance is ensured by the fact that the bailiff hands over or offers the consideration himself or that this is proven by public or publicly certified documents. It is also sufficient if the delay in acceptance has already been determined in the judgment or the debtor declares to the bailiff on his verbal offer of the consideration that he will not accept it.
If the debtor is condemned to give a declaration of intent step by step, then according to § 726 ZPO, the enforcement clause can only be issued if satisfaction or default in acceptance with regard to the consideration has been proven. The background to this regulation is that, in accordance with Section 894, Paragraph 1, Sentence 2 of the German Code of Civil Procedure (ZPO) , when the clause is issued, the declaration of intent is faked , i.e. the debtor would make advance payments if there was no performance or default in acceptance of the consideration when the clause was issued.