Definition and Legal Classification of the Alternative (Eventual) Action
Die Alternative Action is a term from civil procedural law and describes a special form of consolidation of claims in which multiple claims are connected in such a manner that the subordinate claim (contingent claim) is only ruled upon if the primary claim (main claim) is wholly or partly unsuccessful. The alternative action is also known as alternative cumulative consolidation of claims or subsidiary consolidation of claims and is known in German, Austrian, and Swiss civil procedure law.
Legal Basis and Statutory Provisions
The alternative action is based primarily on Sections 260, 253 et seq. of the German Code of Civil Procedure (ZPO), which contain general provisions on filing lawsuits and consolidation of claims. However, there are no specific statutory provisions for the alternative action; its permissibility arises from the need to ensure effective and efficient legal protection.
Consolidation of Claims under Section 260 ZPO
According to Section 260 ZPO, it is permissible to combine multiple claims in one lawsuit, provided there is subject-matter jurisdiction and the same procedural route applies. The alternative action represents a special case in which claims are not asserted side by side, but rather as alternatives or in a hierarchical relationship.
Systematics and Types of the Alternative Action
Within procedural law, a distinction is made between various forms of joining multiple claims:
1. Simple Consolidation of Claims
Here, multiple claims are cumulatively submitted for joint decision. The decision on each claim is made independently.
2. Alternative Action (Subsidiary Action)
In the alternative action, the claimant asserts a primary claim and, in addition, another claim on a subsidiary basis. A contingent claim is only examined if the main claim is unsuccessful (negative condition). This is typically formulated as: “In the alternative, it is requested that …”
Difference to Objective Consolidation of Claims
In objective consolidation of claims, all claims are asserted equally side by side. In contrast, the alternative action is conditional: it becomes relevant only when the main claim is dismissed or fails.
3. Consolidated Alternative Action and Alternative Consolidation of Claims
The consolidated alternative action differs from alternative consolidation of claims, in which only one of several claims is asserted and the court decides which to grant. The alternative action is distinguished by a clear order of review.
Practical Significance and Areas of Application
The alternative action has significant practical importance, as it enables the claimant to pursue an additional claim as a precautionary measure in the event that the primary claim fails, without having to initiate a separate lawsuit. Areas of application include in particular:
- Constitutive Actions: for example, contesting a dismissal, alternatively seeking a declaration that the employment relationship continues.
- Actions for Performance: e.g., primary claim for purchase price payment, alternatively claim for damages.
- Declaratory Actions: e.g., primary claim for performance, alternatively for a declaratory judgment.
Through the use of the alternative action, it is possible to respond more flexibly during the proceedings to developments in the case and to the court’s legal interpretation.
Admissibility and Requirements of the Alternative Action
The admissibility of the alternative action requires that the general procedural prerequisites for each individual claim are met, in particular:
- Jurisdiction: The court must have jurisdiction over both applications.
- Same procedural route: Both claims must be capable of being asserted in the same legal proceedings.
- Connectedness: There must be a connection between the requests; a procedural-economic evaluation suffices for this purpose.
The claimant must formulate the alternative action in such a way that it is clear to the court which claim is the primary and which is the subsidiary.
Binding Effect of the Order
The court is bound by the order in which the alternative claims are made. It must decide on the main claim first and consider the contingent claim only if the main claim is unsuccessful.
Effects and Procedural Particularities
The alternative action has the following effects in civil procedure:
- No Declaratory Effect: The court decides on the contingent claim only to the extent that it does not rule in favor of the claimant on the main claim.
- Treatment in Terms of Costs: If the main and the contingent claims do not concern the same subject matter, the higher or total value is determinative for fixing the amount in dispute.
- Prevention of Loss of Rights: The alternative action provides effective protection against the expiration of deadlines and forfeiture, as the claimant can alternatively assert the contingent claim in the same proceedings in a timely manner.
Distinction from Other Procedural Structures
Alternative Consolidation of Claims
In alternative consolidation of claims, the court selects which claim to grant, whereas in the alternative action, the examination order is rigidly set by the procedural requests.
Change of Parties and Amendment of Claim
The alternative action differs from amendment of claim: With the alternative action, conditionally suspended requests are formulated already at the outset of the proceedings, not only later during the process.
Alternative Action Compared to Alternative Counterclaim
The defendant also has the option to file an alternative counterclaim, which may be asserted under analogous conditions. The procedural requirements are, as a rule, the same as for the alternative action.
Significance in International Procedural Law
The alternative action is also a recognized concept in Austrian and Swiss law, although the respective national legal systems have different systematic classifications and conceptual formulations. In international civil procedure law, the respective rules of conflict of laws and bilateral or multilateral agreements must be observed.
Literature and Further Links
- Code of Civil Procedure (ZPO), Section 260
- Musielak/Voit, ZPO, commentary on Section 260 ZPO
- Thomas/Putzo, ZPO, current edition
- Baumbach/Lauterbach/Albers/Hartmann, ZPO, current edition
Owing to its special procedural structure, the alternative action allows for flexible and efficient enforcement of multiple claims and contributes significantly to substantive and procedural justice. The legal and tactical possibilities of the alternative action provide important options for party representatives in civil proceedings.
Frequently Asked Questions
What typical requirements must be met when bringing an alternative action under German civil procedure law?
The alternative action, as a form of consolidation of claims under Section 260 ZPO (Code of Civil Procedure), requires that several subject matters in dispute are joined, with the claimant expressly making a main request and a subsidiary request. Admissibility is determined in general by the principles of consolidation of claims, particularly the capacity to sue, the interest in legal protection, and connectedness. The alternative action is always admissible if there is a genuine alternative relationship between the main and contingent request, i.e., the contingent request should only be decided if the main request is unsuccessful. Both claims must be ready for independent judgment and may not contradict each other in content. The claimant must also make it clear that the contingent request is made only for the case of the main request’s failure. Formal requirements relate to the clarity of the requests; the claimant’s submissions must make it unmistakably clear to the court in what alternative relationship the requests stand.
How does the court’s decision process work with an alternative action, and what must the court pay particular attention to?
The court initially decides only on the main request. Only if this is unsuccessful does the court consider the contingent request. The assessment thus follows a fixed order of examination according to the declared alternative relationship. The court may not examine or rule on the contingent request as long as there is no final negative decision on the main request. This serves procedural efficiency and ensures that only the decision that actually corresponds to the claimant’s request is made. Regarding conduct of proceedings, this results in a special duty of diligence by the court in asserting and distinguishing the claims. The court must also ensure that there is no impermissible alternative consolidation of claims, where claims are independent of each other, which may be inadmissible in contrast to the alternative action if the competition of claims is not clearly regulated.
What role does the alternative action play in relation to the statute of limitations for claims?
Filing a contingent request as part of the alternative action generally protects the statute of limitations for the asserted claim from the time the statement of claim is filed with the court (Section 204(1) No. 1 BGB). This also applies even if the contingent request is only made in case the main request is unsuccessful; lis pendens also includes the alternatively pursued claim. However, the contingent request must meet the necessary minimum standard of specificity according to Section 253(2) No. 2 ZPO. Otherwise, the aim of interrupting the statute of limitations may be missed. It is advisable, particularly if the defendant raises objections to the admissibility of the contingent request, to ensure its specificity and assertion before the end of the proceedings.
Can an alternative action also be brought in proceedings other than civil proceedings?
The structure of the alternative action, in its detailed form, is rooted in German civil procedure law, in particular in contentious proceedings. However, consolidation of claims in the alternative is also transferable to other types of proceedings, such as labor court proceedings under Section 46 ArbGG, since ZPO provisions apply unless the Labor Court Act provides otherwise. In administrative court proceedings (e.g., under VwGO), there is no explicit provision for alternative consolidation of claims, but comparable structures are possible through staged or contingent applications, provided the respective procedural codes do not explicitly exclude them. It is recommended to check in each case whether analogous application is permissible and appropriate and how procedural requirements are specifically structured in the relevant procedural law.
How are alternative action, alternative consolidation of claims, and objective consolidation of claims distinguished?
The alternative action differs from alternative consolidation of claims and simple objective consolidation of claims through the relationship between the claims asserted. In objective consolidation of claims (Section 260 ZPO), several claims are asserted cumulatively and the court decides on all matters in dispute. In alternative consolidation of claims, several claims are asserted side by side, but only one should be granted; this is generally inadmissible unless there is an obligation to choose. The alternative action is characterized by the fact that the contingent request is only ruled upon if the main request is unsuccessful. The alternative relationship is therefore a true conditional relationship: the contingent request is accessory to the main request. This distinction is central to admissibility, as unclear or mixed relationships can lead to inadmissible consolidation of claims.
What strategic considerations speak in favor of using an alternative action in civil proceedings?
The use of an alternative action is particularly advisable when the claimant is uncertain as to which of their claims will actually succeed, for example due to disputed or ambiguous legal grounds. By combining primary and contingent requests, the claimant can seek enforcement of claims according to priority and prevent being left without a judgment if the principal claim is uncertain. There is also less risk that a possible contingent claim will become time-barred if only the principal claim was originally pursued. Frequently, alternative actions relate to different legal grounds (e.g., contract and management without mandate) that may exist side-by-side under substantive law, but should not be pursued cumulatively for procedural-economic reasons.
Are there disadvantages or risks for claimants or defendants using the alternative action?
Disadvantages for the claimant include, above all, that the added complexity of managing the relationship between main and contingent requests increases the risk of procedural errors, notably regarding the correct formulation of requests and their specificity and admissibility. Another disadvantage may arise if the court overlooks or misapplies the structure of the alternative requests, possibly resulting in an incomplete judgment. For the defendant, the alternative action increases uncertainty regarding the subject matter of the dispute, as they must defend against multiple alternative claims. It may also lead to more laborious defense and thus higher costs. Procedurally, clear and structured requests are essential to avoid both procedural and substantive legal disadvantages.
