Term and Legal Definition of Berühmung
Berühmung is a legal term from German civil procedure law and refers to a party’s explicit or implicit assertion of being the holder of a specific right or fact. Berühmung can occur in relation to both rights and factual circumstances. It plays a central role particularly in negative and declaratory actions, as well as in relation to the allocation of the burden of proof and procedural objections.
Historical Development and Legal Foundations
The origins of Berühmung date back to Roman law, where the concept of asserting a legal position was first systematically developed. In the German legal system, Berühmung is anchored in the German Civil Code (BGB) and in the Code of Civil Procedure (ZPO). The relevant legal provisions are found in rules regarding actions for performance (§ 256 ZPO), in declaratory actions, and in the context of negative declaratory actions.
Areas of Application and Practical Significance
Berühmung with Regard to Rights
A typical case of Berühmung arises when a party—usually the defendant—claims to be the creditor of a debt or the holder of a right (for example, in the case of an assignment of claims or property rights). The opposing party can contest this Berühmung by disputing the entitlement and filing a negative declaratory action.
Significance for the Negative Declaratory Action
According to § 256 section 1 ZPO, a negative declaratory action is admissible “if the defendant claims a right.” This means that the plaintiff seeks a judicial determination that the right asserted by the defendant does not exist. The prerequisite is that the defendant expressly or through their conduct makes it clear that they wish to derive claims from a specific right. The term “Berühmung” here is understood as any outward declaration or action likely to cause doubts about the legal situation.
Implicit and Explicit Berühmung
A Berühmung can be made either explicitly by a clear communication (e.g., written demand, reminder) or implicitly, that is, through conclusive conduct. Typical examples of implicit Berühmung include the continued collection of rent payments based on an alleged tenancy agreement, or exercising a right that in fact does not exist. Case law always requires an outward effect indicating a legal claim.
Legal Consequences of Berühmung
Berühmung has far-reaching procedural consequences. It often constitutes the prerequisite for the admissibility of certain types of actions, especially declaratory actions, and may shift the burden of proof. For example, if a Berühmung is made concerning a right, the party making this assertion is generally required to prove the existence of the right in the proceedings.
Distinction from Related Legal Concepts
Berühmung must be distinguished from related terms such as acknowledgment (Anerkenntnis) and possession. While acknowledgment is a unilateral declaration of intention with legal effect, Berühmung is merely an assertion or claiming of a right or fact, without this already producing any legal effect.
Burden of Proof and Berühmung
In connection with Berühmung, issues of the burden of proof are of significant importance. In principle, the party claiming a right and deriving claims from it bears the burden of presentation and proof. If the asserted rights are challenged in court, the claiming party must prove their assertion in a substantiated manner.
Procedural Aspects and Questions of Procedure
Berühmung in Cognizance Proceedings
In cognizance proceedings, Berühmung regularly gives rise to a party clarifying by way of a negative declaratory action whether the right claimed by the opponent actually exists. The procedural assertion of Berühmung implies that a correspondingly legitimate interest in protection is assumed for the plaintiff.
Berühmung in Preliminary Legal Protection
Berühmung can also play a role in preliminary legal protection if a party asserts to be the holder of a claim and this poses a threat to the opposing party’s legal position. In such cases, the defending party may initiate preliminary injunction proceedings to prevent undesirable measures.
Significance of Berühmung in Case Law
Decisions by the Federal Court of Justice and lower courts have increasingly specified the requirements for Berühmung and its actual preconditions over the years. What is always decisive is whether the assertion of a right is objectively recognizable outwardly and whether a specific legal claim can be derived from the conduct.
References to Literature and Relevant Provisions
Key regulations include § 256 ZPO (declaratory action), §§ 194 ff. BGB (limitation and enforcement of rights), as well as numerous court decisions that have elaborated on the significance and requirements of Berühmung in detail.
Summary
Berühmung is an essential institution of German civil procedure law that structures the procedural assertion and defense of rights and claims. It plays a central role in all civil-law disputes in which rights or facts are denied or asserted, and is of particular practical relevance in the context of declaratory actions. Clarity regarding the existence of a Berühmung is therefore often decisive for the admissibility and progress of civil proceedings.
Frequently Asked Questions
What requirements must be met for a legally effective Berühmung?
For a legally effective Berühmung—that is, the assertion of a contested or third-party right—various prerequisites must be met. First, the Berühmung must be made explicitly or recognizably to the person whose legal position is affected. The claiming party must unequivocally declare that they are asserting a particular right (for example, ownership of an object or a claim) and are making this legal position enforceable against the current holder or possessor. This can be done orally, in writing, or implicitly; however, in legal disputes an explicitly formulated and documented Berühmung is often required. Furthermore, it is expected that the claiming party can credibly demonstrate that there are at least tangible indications for the existence of the asserted right; mere allegations without any actual basis are generally insufficient to trigger the legal effects of a Berühmung.
What legal consequences can a Berühmung have?
A Berühmung can have various legal consequences depending on the individual case. In civil procedure law, for example, asserting a contested right often results in the previous owner or holder of an object being considered an “interferer” or “unauthorized person,” provided the Berühmung is substantiated and plausible. This may trigger special rules on the burden of proof or result in legal protection against dispositions by authorities or third parties being partly suspended until the legal dispute is resolved. In the context of public administration, Berühmung of a right can lead to the suspension or interruption of the enforcement of an administrative act as long as the actual legal relationships have not been clarified (“Berühmungssperre”). In certain cases, a Berühmung can also suspend the running of the statute of limitations.
How does Berühmung relate to the statute of limitations, and can it suspend limitation?
Under German law, a Berühmung can, under certain circumstances, suspend the statute of limitations. The prerequisite is that the Berühmung involves a serious out-of-court assertion of a claim that initiates a negotiation situation between the parties. According to § 203 BGB, limitation is suspended as long as negotiations about the claim or the circumstances giving rise to the claim are ongoing between creditor and debtor. Thus, if one party starts asserting a disputed claim and the parties engage in negotiations about whether the asserted right actually exists, limitation with regard to that claim is generally suspended until one party refuses or breaks off negotiations.
Does a Berühmung have to be substantiated and what level of substantiation does the case law require?
The Berühmung must be sufficiently substantiated; according to settled case law, it is not sufficient to merely refer to an alleged right in a blanket or unsubstantiated manner. The Berühmung must clearly specify which exact right is being asserted, against whom it is asserted, and on what factual and legal basis the right is claimed. If this obligation to substantiate is not fulfilled, a Berühmung can be deemed irrelevant in procedural law, with the consequence that claims are dismissed for lack of coherent submission or presumptions are not rebutted.
What role does Berühmung play in enforcement proceedings?
In enforcement law, third parties who assert rights to attached property may bring a third-party objection action pursuant to § 771 ZPO. Here, Berühmung forms the basis for further procedural action, as a third party must credibly show that they have a better right to the property affected by enforcement than the creditor. Mere assertion alone does not suffice: it must be sufficiently concrete and verifiable. The courts then examine whether the third party has made it sufficiently probable through their Berühmung and supporting evidence that their right actually exists.
What are the differences between a Berühmung and a mere notification or communication?
Unlike a mere notification, communication, or objection, a Berühmung is always aimed at asserting one’s own subjective right. Whereas a notification simply informs about a circumstance or expresses dissatisfaction, Berühmung is a targeted legal act by which a party explicitly and seriously claims a particular right for itself—usually against a third party who claims or holds the right themselves. This distinction has far-reaching legal consequences, for example regarding the suspension of limitation, the application of special rules on the burden of proof, or the initiation of judicial protection mechanisms.
What happens if several people assert the same right?
If several people simultaneously assert the same right, a disputed legal situation arises that can usually only be resolved through mediation, a settlement, or a judicial decision. This is typical, for example, in relation to ownership of movable property or real estate, as well as in inheritance cases. In such situations, the competent authority (court, administrative body) can initially order that dispositions over the disputed object be suspended (“Berühmungssperre”) until the legitimacy of one of the claims is established. The parties are obliged to substantiate and prove their alleged rights. Until the dispute is resolved, the ultimate disposition of the right is generally blocked.
Can a Berühmung be withdrawn, and what are the consequences?
A Berühmung, once declared, can generally be withdrawn unless it has already produced procedural or substantive binding effects (e.g., by initiating court proceedings). The withdrawal must be communicated to the affected party. Upon withdrawal, the legal effects associated with the Berühmung—such as suspension of limitation or procedural barriers—cease; the procedure then continues according to the substantive legal situation. However, if the Berühmung is withdrawn during pending proceedings or within the scope of specific legal actions (e.g., objection actions), this can be considered, depending on the circumstances, as a withdrawal of the action and entail corresponding procedural consequences (e.g., cost decisions).
