Arrestatorium
The Arrestatorium is a central concept in German enforcement and security law. It refers to a judicial or official order that prohibits the debtor from making certain dispositions over assets or obliges third parties not to hand over or transfer these assets to the debtor. The aim is to safeguard the creditor’s interests, especially in attachment or garnishment proceedings. The Arrestatorium is primarily applied in connection with arrest execution (§§ 916 et seq. ZPO) and within enforcement proceedings (§§ 828 et seq. ZPO).
Meaning and Purpose of the Arrestatorium
The Arrestatorium serves to secure potentially endangered property rights. It prevents the debtor from disposing of specific assets and thus removing them from the creditor’s reach during pending security proceedings. Additionally, the Arrestatorium is often directed at third parties, especially in the context of garnishment of claims (third-party garnishment pursuant to § 930 ZPO), and has the effect that these third parties may no longer pay or deliver assets to the debtor.
Legal Foundations
Arrest and Execution of Arrest
The main rules for the Arrestatorium are set out in §§ 916 to 945 of the Code of Civil Procedure (ZPO). Core elements are the reason for the arrest (§ 917 ZPO), the arrest claim (§ 916 ZPO), and the execution of the arrest (§ 929 ZPO). In the course of executing an arrest, what is known as a garnishment and transfer order is usually issued, which serves as both an Arrestatorium and a sequestration order.
Protection from Attachment and Third-Party Garnishment
According to §§ 829, 930 ZPO, in the event of a garnishment of claims, the Arrestatorium is ordered against the third-party debtor. The court thereby expressly prohibits the third-party debtor from making payments to the debtor. Such prohibitions on disposition are of crucial importance for the protection of the attaching creditor, as they prevent asset transfers or disadvantages to the creditor.
Distinction: Sequestration Order
The Arrestatorium must be distinguished from the so-called sequestration order. While the Arrestatorium aims to restrict disposition, sequestration relates to the taking possession and safekeeping of assets. However, these two orders often occur together in the course of executing an arrest (§ 930 para. 1 ZPO).
Functioning of the Arrestatorium
Effect on the Debtor
Upon issuance of the Arrestatorium, the debtor is prohibited from making any dispositions over the assets affected by the arrest. This includes, for example, sale, encumbrance, or pledging. Violations may render the relevant legal act ineffective and, if applicable, entail criminal consequences.
Effect on Third Parties (Third-Party Debtors)
In the case of third-party garnishment, the Arrestatorium prohibits third parties, such as employers or banks, from paying or delivering to the debtor. In the event of violations, legal consequences may also arise here, including direct claims by the creditor.
Scope of the Restriction
The Arrestatorium generally takes effect upon service to the affected persons. However, the prohibitions apply only within the scope of the respective order and relate solely to the assets or claims specified therein.
Procedural Aspects
Service and Execution
The execution of the Arrestatorium occurs through proper and timely service to the debtor and, where applicable, third parties (§ 929 ZPO). Compliance with the deadlines is a prerequisite for the validity of the order and any subsequent enforcement actions.
Duration and Revocation
The Arrestatorium remains in effect until the final decision on the main claim or until it is revoked by the court. Revocation may occur, for example, if the creditor withdraws, the reason for the arrest ceases to exist, or security is provided (§ 942 ZPO).
Legal Consequences of Violating the Arrestatorium
If the Arrestatorium is violated, the affected dispositions are systematically invalid under civil law (§ 136 BGB by analogy). In particular, the creditor can claim compensation for resulting disadvantages. If criminal acts, such as obstruction of enforcement (§ 288 StGB), are involved, further consequences may ensue.
Arrestatorium in the International Context
Comparable security instruments exist in European and international civil procedure law. Within the framework of the Brussels Ia Regulation, security measures, including arrest and Arrestatorium, can be enforced across borders provided the requirements are met.
Literature and Further References
- Code of Civil Procedure (ZPO) §§ 916 et seq., 828 et seq.
- Munich Commentary on the ZPO
- Stein/Jonas, Commentary on the ZPO
- Thomas/Putzo, ZPO Commentary
The Arrestatorium is thus a versatile security instrument in civil procedural law that plays a key role in the effective protection of creditor claims. Its precise application and observance are legally binding on all parties involved as well as on third parties, and it has far-reaching effects both within and outside of enforcement proceedings.
Frequently Asked Questions
When does an Arrestatorium become legally effective and how is the debtor notified?
An Arrestatorium is generally issued by court order and becomes legally effective upon service to the third-party debtor, such as a bank or an employer. According to the provisions of the Code of Civil Procedure (especially §§ 922 et seq. ZPO), the Arrestatorium then takes effect by restraining the debtor from disposing of the asset in question. The debtor is usually notified after service to the third-party debtor, to prevent any transfer of assets and to effectively secure the arrest. The effectiveness of the Arrestatorium therefore depends primarily on proper service and compliance with procedural requirements.
What legal remedies are available to the debtor against an Arrestatorium?
The debtor may file various legal remedies against the issuance of an Arrestatorium. The main remedy is an immediate appeal pursuant to § 793 ZPO, which must be filed within two weeks of service of the arrest order. In addition, in the arrest proceedings, the debtor may file an application for revocation pursuant to § 927 ZPO if the requirements for the arrest have since changed or ceased to exist. In individual cases, an objection to enforcement pursuant to §§ 767, 768 ZPO is also possible. The courts thus grant the debtor effective means to review and, if necessary, eliminate an imposed Arrestatorium, whereby the relevant deadlines and formal requirements must always be observed.
Which property rights can be affected by an Arrestatorium?
An Arrestatorium can affect all property rights of the debtor, provided these are specifically designated in the arrest order. In practice, common examples include claim garnishments affecting the debtor’s claims against third parties—such as account balances at banks, wage claims against employers, or rights under ongoing contracts. Movable property or real estate can also be subject to arrest, in which case the Arrestatorium is replaced by a temporary entry of a security mortgage or by attachment. The scope of the Arrestatorium is thus determined by the creditor’s application as well as the judicial order, and is limited to the extent necessary to secure the claim.
What are the legal consequences of serving an Arrestatorium on the third-party debtor?
When the Arrestatorium is served on the third-party debtor, the latter is prohibited, within the scope of the duty to oppose third-party claims, from making payments to the debtor or delivering the debtor’s assets. From this point on, the third-party debtor must maintain strict neutrality and may not permit any transactions to the detriment of the arrest creditor. Violation of the Arrestatorium may incur liability on the part of the third-party debtor, both civilly for damages and, where applicable, criminally for obstruction of enforcement. The binding legal effect derives directly from service of the arrest order and remains in force for the third-party debtor until a contrary court decision is issued.
Can the Arrestatorium be averted by providing security?
Yes, according to § 923 I ZPO, the debtor may avert the execution of the arrest and thus the effectiveness of the Arrestatorium by providing sufficient security. This security must be suitable to ensure satisfaction of the creditor should the main claim be justified. The court decides on the type and scope of the security at its discretion. Commonly accepted securities include bank guarantees, bank deposits, or securities. Upon provision of such security, the arrest proceedings remain in place, but enforcement measures against the debtor’s assets are suspended or lifted.
What obligations does the creditor have after a successful order of an Arrestatorium?
Following the order of an Arrestatorium, the creditor is particularly obliged to bring the main claim within a period set by the court, unless this has already been done, see § 926 ZPO. If the creditor fails to do so, the Arrestatorium must be lifted upon the debtor’s request. Additionally, the creditor is obligated to inform the court of any changes in the circumstances leading to the arrest, such as the elimination of the reason for the arrest. If the arrest was illegal or unfounded, the creditor is liable to the debtor for any resulting damages, especially under § 945 ZPO (liability for damages).
How long does an Arrestatorium remain effective?
The effectiveness of an Arrestatorium generally lasts until a final decision in the main action or until the arrest is lifted (for example, by providing security or through appeal proceedings). The specific duration therefore depends on various factors, such as the length of the court proceedings or the success of any appeals lodged. An Arrestatorium also lapses upon withdrawal or revocation of the arrest application or by explicit judicial decision. Furthermore, its effectiveness automatically ends if the reason for the arrest no longer exists and this is demonstrated to the court.
