Amendment Action
The amendment action represents a special procedural type of lawsuit in German civil procedure law. It enables a party to subsequently alter the subject matter of an already pending legal proceeding. Amendment actions are primarily regulated within sections 263 et seq. of the Code of Civil Procedure (ZPO) and serve procedural flexibility by permitting, under certain conditions, the supplementation or extension of the original claim.
Definition and Legal Classification
Definition
An amendment action is any modification of a claim during an ongoing trial whereby the plaintiff alters, expands, or replaces either the claim itself or the underlying cause of action, or both. In practice, the amendment action differs from an extension of the claim (quantitative change) and a conversion of the claim (qualitative change), both of which are considered subtypes of amendment actions.
Statutory Foundations
The relevant provision for amendment actions can be found in section 263 ZPO. According to this, a modification of the claim is generally permitted if the defendant consents or if the court considers it expedient. This reflects the tension between the interest in a prompt, effective court proceeding and the need of the plaintiff to be able to adapt to changed circumstances afterwards.
Types and Forms of Amendment Action
Extension of the Claim
With an extension of the claim, the originally asserted subject matter is supplemented by additional claims. This particularly applies to the increase of an asserted demand.Example: In the original lawsuit, the plaintiff claims €1,000 in damages and during the process increases this to €1,500.
Conversion of the claim or amendment in the narrower sense
A qualitative amendment is present when the plaintiff bases their claim on a different set of facts or legal grounds. This may involve, for example, changing from a performance claim to a declaratory judgment.Example: Initially, payment of a sum of money is demanded, while later only the determination of the payment obligation is sought.
Change of Party (Subjective Amendment Action)
An amendment action can also occur on the level of the parties when a party joins, leaves, or is substituted. This is called a change of party, regulated in section 263, alternative 1 ZPO.Example: A new plaintiff or defendant is included in the proceedings, for example, as a result of a statutory party change when a disputed right is transferred during the proceedings.
Admissibility Requirements
Consent of the Defendant
An amendment action is unrestrictedly admissible if the defendant expressly or implicitly agrees to the amendment. If consent is lacking, the court examines whether the conditions of expediency are met.
Expediency
The court assesses the expediency of the amendment at its discretion. Expediency exists if, as a result of the amendment, the subject matter in factual and legal respects can be comprehensively and conclusively resolved in the ongoing proceedings. Procedural economy and the promotion of the process are particularly decisive criteria.
Timing of the Amendment
An amendment of the claim is generally possible at any stage up until the last oral hearing before judgment is rendered. Instances already completed, or procedural parts no longer influenced due to lapse of time, are excluded.
Procedural Handling and Implications
Procedure for Amendment of a Claim
The plaintiff must clearly and unequivocally express the wish to amend to the court. Upon request, the court gives the defendant the opportunity to comment. The court then decides, by an order not independently subject to appeal, on the admissibility of the claim amendment.
Effect of the Claim Amendment
The amendment action has the procedural effect that the altered subject matter is litigated anew. In the case of an approved amendment, pendency (§ 261 ZPO) also applies to the new claim from the time of the change.
Cost Implications
The costs of the amendment action are based on the broader subject matter of the dispute. In the case of an inadmissible amendment or a failed amendment application, the plaintiff bears the additional costs incurred.
Distinction from Related Processes
Objective Joinder of Actions
In contrast to an amendment action, in objective joinder of actions, multiple claims are asserted from the outset. A later addition in the process is instead considered an amendment action.
Contingent Action (Subsidiary Claim)
A contingent action is not formally an amendment action, as the plaintiff merely files an additional request in case of losing the main claim.
Exclusion and Special Cases
Partial Withdrawal of the Action
A mere restriction of the claim (partial waiver) is not legally considered an amendment action.
Inadmissible Amendment Action
The amendment action is inadmissible if its acceptance would considerably delay the proceedings or is not compatible with the purpose of the civil process, for example in cases of ambushing the opposing party or belated factual submissions.
Importance in Practice
The amendment action serves to make civil proceedings more flexible and prevents a plaintiff from having to initiate a new proceeding to assert a modified claim. At the same time, the institution safeguards the legitimate interests of the defendant by ensuring that certain requirements and procedural steps must be followed for the amendment to be accepted. It is of particular practical importance in cases involving lengthy fact-finding or the emergence of new facts.
Literature References and Further Provisions
- Code of Civil Procedure (ZPO), §§ 261, 262, 263, 264, 265 ZPO
- Munich Commentary on the ZPO, on § 263
- Thomas/Putzo, ZPO, Commentary on § 263
- Zöller, ZPO, §§ 263 et seq.
The amendment action is therefore a central procedural tool in civil proceedings, enabling proper and comprehensive resolution of legal disputes in a single instance without subjecting the parties to unnecessary delays or expenses from multiple proceedings.
Frequently Asked Questions
When is an amendment action admissible under the Code of Civil Procedure?
The admissibility of an amendment action is regulated in § 263 of the Code of Civil Procedure (ZPO). In principle, the subject matter of a pending lawsuit may only be changed with the consent of the defendant or with the approval of the court. The court may allow the change only if, in its considered judgment, it serves to expediently further the proceedings. In the cases of § 264 ZPO, a claim may also be amended without such approval, for example, when the cause of action is changed for clarification or supplementation, or the asserted claim is adapted due to subsequently occurring or newly discovered facts or events. Furthermore, the conversion from a performance to a declaratory action and vice versa is also permitted regardless of consent. Admissibility therefore essentially depends on the expedient promotion of the legal dispute and the preservation of the defendant’s procedural rights.
What are the procedural implications of allowing an amendment action?
Allowing an amendment action means the pending legal dispute continues, but with an altered subject matter. It’s important that procedural acts largely remain intact, especially with regard to the continued admissibility of the action, the pendency, and any decisions or orders that have already been made. Any legal status already attained, such as pendency, is preserved so that limitation is also suspended for claims introduced by amendment. However, if the amendment introduces an entirely new subject matter, certain procedural defenses or exceptions may newly arise or disappear. The previous assessment of the value of the dispute by the court can also change as a result of the amendment, which is particularly significant with regard to fees.
What is the difference between objective joinder of actions and an amendment action?
Objective joinder of actions and amendment of claims are procedurally distinct: in an objective joinder of actions, the plaintiff pursues several claims in one action from the outset, whereas in an amendment action, a claim or the underlying set of facts (cause of action) is later changed or an additional claim is introduced in the course of proceedings. The procedural requirements for originally filing an objective joinder are less strict than those for an amendment, which, in particular, requires the defendant’s consent or a finding of expediency by the court. The admissibility of joinder is governed by § 260 ZPO, while §§ 263, 264 ZPO apply to amendments.
Can additional evidence be introduced in the context of an amendment action?
Yes, with an amendment action, new evidence not previously submitted may also be introduced, provided it is connected to the newly introduced claim or actual assertions made through the amendment. Particularly in the case of an extension of the claim, evidence pertaining to the expanded claim can be introduced without issue. Even when changing the basis of the claim (e.g., switching from performance to damages claims), evidence relevant to the new legal situation is permissible. Nevertheless, the procedural obligation to timely submit such material remains, along with the possible risk of exclusion if introduced late (§§ 296, 282 ZPO).
Is an amendment action possible in appellate proceedings?
An amendment action is in principle also possible at the appellate level, but the requirements for admissibility are stricter than at first instance. Under § 533 ZPO, an amendment is only allowed if the opponent agrees or the court considers it expedient and it is based on facts already introduced at first instance or that are undisputed. Subsequent expansions based on entirely new facts are excluded. These restrictive conditions aim to accelerate appeal proceedings and protect participants from unexpected new issues.
What legal remedies are available against the allowance or refusal of an amendment action?
There is generally no separate legal remedy against the decision to allow or refuse an amendment action, as this constitutes an interlocutory decision not independently subject to appeal. The decision can only be reviewed within the scope of a legal remedy against the final judgment (appeal or revision). If the amendment action is wrongly refused, this can be challenged during appeal and then the matter can be addressed. Only in exceptional cases, such as a clear breach of the right to be heard, can an immediate complaint be admissible.
What formal requirements must be observed when filing an amendment action?
An amendment action must observe the same formalities as the original claim, meaning written form (in written proceedings) or recording in the minutes during an oral hearing. The new or amended claim, as well as the underlying factual circumstances, must be detailed enough to meet the specificity requirements of § 253(2) no. 2 ZPO. The new submission must also be properly served to the opponent unless they are otherwise made aware of it during the hearing, in order to ensure the right to be heard.
