Constitutive judgment in German civil procedural law
Das Constitutive judgment represents a distinct type of judgment in German civil procedural law. It differs significantly from other civil court decisions, such as performance judgments or declaratory judgments. The following provides a comprehensive explanation of its legal foundations, outlines the procedural specifics, and analyzes the practical implications.
Definition and distinction of the constitutive judgment
A constitutive judgment is a judgment by which a court directly effects a change in an existing legal relationship. It thus goes beyond a mere declaration or an obligation to perform. The court creates, terminates, or modifies a legal relationship in its legal basis. Typical examples are the dissolution of a marriage or the contestation of a legal transaction.
Distinction from other types of judgments:
- Performance judgment: Obligates the defendant to perform, tolerate, or refrain from a specific action.
- Declaratory judgment: Merely establishes the existence or non-existence of a legal relationship, without changing it.
- Constitutive judgment: By judicial decision, directly effects a change in the legal situation.
Elements and legal foundations
Procedural requirements
Constitutive judgments always require a action to create or alter a legal relationship (Gestaltungsklage) as a prerequisite. In this type of action, the claimant does not merely seek a declaration or performance, but judicial creation of a desired legal consequence, e.g., the dissolution or modification of a legal relationship.
Authorization in substantive law
A mandatory precondition for a constitutive judgment is express authorization in substantive law. Without such authorization, a change in the legal situation by judgment is generally excluded. The legislature provides for this, for example, in the German Civil Code (BGB) or in family law.
Examples:
- § 1564 BGB: Dissolution of marriage by judicial judgment (divorce).
- § 142 I BGB: Nullity of a contested legal transaction by declaration of avoidance and action.
- § 894 ZPO: Correction judgment in case of objections under land register law.
- § 313 BGB: Decision on the adaptation of a contract due to a disturbance of the basis of the transaction.
Effect and res judicata effect of the constitutive judgment
Constitutive effect
The constitutive judgment produces what is known as constitutive effect (Gestaltungswirkung). From the entry into force of res judicata, the judgment takes effect ex nunc (for the future), unless otherwise provided by law. In contrast, some avoidance judgments exert ex tunc-effect (retroactively), such as the nullity of an existing legal transaction.
Binding effect and enforcement
Constitutive judgments are generally not aimed at performance and are often not suitable for compulsory enforcement, since they do not provide an enforceable title for a specific act. An exception is the correction judgment for the land register (§ 894 ZPO), which can be used as an enforceable title for the registration.
Res judicata
The res judicata effect of a constitutive judgment is decisive: Upon entry into formal res judicata, the modifying change in the legal relationship occurs. The time when res judicata is achieved is therefore crucial, for example in divorce judgments or actions for avoidance.
Significance in various fields of law
Family law
In family law, the constitutive judgment is mainly applied in divorce and annulment proceedings. The marriage is not dissolved by the action itself, but only by the legally binding judgment, § 1564 BGB.
Law of obligations and contract law
In the law of obligations, the constitutive judgment enables the court, for example, to modify or terminate contracts, e.g., in cases of disturbance of the basis of the transaction (§ 313 BGB), when fundamental circumstances have subsequently changed.
Property law and land register law
Another field of application is property law, in particular the rectification of the land register. The correction judgment for the land register (§ 894 ZPO) serves to eliminate an incorrect entry.
Procedural specifics of the constitutive judgment
Type of action and description of claim
The action for a constitutive judgment aims at effecting a change in the legal relationship. The complaint must set out and substantiate the facts constituting the claim and the interest in legal protection, explaining why mere performance or declaration is insufficient.
Form and wording of the judgment
The operative part of a constitutive judgment must clearly set out the specific legal change, e.g.: “The marriage between the parties is dissolved,” or “The contract concluded between the parties is annulled.”
Effect towards third parties
Some constitutive judgments have an erga omnes effect, i.e., they impact everyone (such as a divorce), whereas others operate only inter partes, i.e., only between the parties to the proceedings.
International and comparative aspects
Constitutive judgments are found not only in German civil procedural law. Other legal systems also recognize comparable types of judgments, although their design may differ in detail. In private international law, the recognition of constitutive judgments from foreign courts is particularly relevant, for instance in cases of divorce.
Summary and significance
The constitutive judgment is a central type of judgment in German civil procedural law. It differs from performance and declaratory judgments in that it allows the court to directly intervene in a legal relationship, modifying, dissolving, or newly structuring it. The effect of these judgments depends mainly on the entry into res judicata and is subject to the respective statutory provisions of substantive law. Detailed knowledge of the requirements, procedural demands, and legal consequences is of significant practical importance for lawful application.
Frequently asked questions
When does the constitutive judgment play a role in civil proceedings?
The constitutive judgment becomes relevant in civil proceedings whenever a judicial judgment is intended to bring about a direct change in the legal situation. This is particularly the case when a party seeks judicial dissolution, creation, modification, or determination of a right that does not merely require a declaration but active alteration through the judgment. Typical examples in civil law are the divorce of a marriage pursuant to § 1564 BGB, the contestation of a contract, or the dissolution of an association. In contrast to a performance judgment, which imposes an obligation to perform or refrain from an action, and to a declaratory judgment, which merely determines the existence or non-existence of a legal relationship, a constitutive judgment directly affects the legal situation. The court thus issues a decision that originally alters the parties’ legal relationship without requiring a separate enforcement title for the actual legal change.
How does the constitutive judgment differ from other types of judgments?
The constitutive judgment differs from other types of judgments in civil procedural law primarily in its effect: While a performance judgment is aimed at the fulfillment of a specific performance (such as payment, delivery, or omission) and can be enforced through compulsory execution, a declaratory judgment only establishes the existence or non-existence of a legal relationship without directly effecting a legal change. The constitutive judgment, on the other hand, modifies, annuls, or creates a legal relationship with binding effect directly by the judgment itself. No further action is required for the legal change; the change in the legal situation occurs upon pronouncement or entry into res judicata of the judgment, depending on the statutory requirements of the respective substantive right.
When does a constitutive judgment become final and how does this effect operate?
In the case of a constitutive judgment, the legal change usually occurs upon the entry into formal res judicata (§ 705 ZPO), unless the law stipulates that the pronouncement of the judgment is decisive (in a few special cases, e.g., divorce law, this may be relevant). Upon entry into res judicata, the respective legal relationship is created, altered, or terminated directly. The res judicata effect of the constitutive judgment means that not only is the decision binding on the parties, but also on third parties for whom the judgment has effects (for example, in status judgments such as divorce). The entry into res judicata leaves no room for subsequent changes by the parties themselves or further judicial orders in the same matter.
Is compulsory enforcement possible for a constitutive judgment?
Since the constitutive judgment directly effects a legal change, classical compulsory enforcement for the changing effect is generally not necessary. This means that the court judgment itself brings about the requested legal consequence, without the need for enforcement measures. However, if the constitutive judgment contains ancillary claims in the form of an obligation to perform certain acts (e.g., surrendering documents after divorce), these parts may be enforced through compulsory execution. Essentially, however, the immediate effect of the constitutive judgment relates to the automated legal change.
Does the subject matter of the constitutive judgment need to be specifically defined in the application?
Unlike other types of judgments, in constitutive judgments, the application must clearly and unambiguously state the desired constitutive effect. The claimant must specify which change in the legal relationship is to be brought about by the court’s judgment. This is to be set out, for example, in divorce proceedings by formulating “It is determined that the marriage between the parties is dissolved,” or in contesting a declaration of intent: “The contested declaration of intent is declared void.” Without such a precise application, the court could dismiss the action as inadmissible, since the court may not go beyond the claimant’s request (§ 308 (1) ZPO).
What remedies are available against a constitutive judgment?
Constitutive judgments are generally subject to the same remedies as other judgments in civil proceedings, in particular appeal and revision pursuant to §§ 511 ff., §§ 542 ff. ZPO. It must be noted that lodging a remedy (such as an appeal) generally has a suspensive effect with respect to the res judicata effect and therefore also the constitutive effect of the judgment. This means that a legal change tied to the entry of res judicata only takes effect upon formal res judicata of the constitutive judgment. By exception, however, the court may, under § 707 ZPO, order provisional enforceability—in particular in cases of special interest.
Are there any special features regarding standing or the need for legal protection in respect of constitutive judgments?
For an action seeking a constitutive judgment, the general procedural requirements for standing and the need for legal protection apply. However, it should be noted that a constitutive judgment is only permissible where authorized by statute—the claimant must assert a so-called constitutive right expressly granted to them by law (e.g., avoidance, divorce, termination). Lacking such a constitutive right, the action for a constitutive judgment is inadmissible. Furthermore, a legitimate interest in a judicial constitutive decision must generally exist, i.e., a worthy interest in the court’s intervention.
What significance does the constitutive judgment have for third parties?
The effect of a constitutive judgment can extend to third parties, in particular where judgments determine the status of a party (e.g., divorce, adoption, determination of paternity). Such judgments have erga omnes effect, meaning they are binding on third parties even if they did not participate in the proceedings. However, the procedural effects beyond those involved are limited and depend on the substantive provisions in each case, so not every constitutive judgment automatically binds third parties. In purely contractual judgments, the binding effect generally remains limited to the parties.
