Definition and Significance of the Declaratory Judgment
Das Declaratory Judgment is a type of judgment regulated under German civil procedure law, by which the existence or non-existence of a legal relationship, or the authenticity or falsity of a document, is established. In contrast to a performance judgment or a constitutive judgment, it does not impose an immediate obligation to act or change rights directly, but rather delivers a binding decision on the existence or non-existence of a legal relationship. The declaratory judgment thereby provides legal clarity between the parties and serves to prevent further legal disputes.
Legal Nature and Characteristics of the Declaratory Judgment
Distinction from Performance and Constitutive Judgments
A declaratory judgment differs significantly from other types of judgments:
- Ein Performance Judgment obligates the defendant to perform a specific act, tolerate, or refrain from something, for example, to pay a sum of money.
- Ein Constitutive Judgment directly brings about a change in legal relationships, such as the dissolution of a marriage.
- Das Declaratory Judgment on the other hand, merely provides a legal clarification without immediately changing rights or enforcing an obligation.
Legal Force and Effect
The declaratory judgment has a binding effect between the parties (inter partes) and prevents the issue already determined from being litigated again (res judicata – § 322 ZPO). It forms the basis for future claims for performance or serves as a defense against unfounded claims. A declaratory judgment is not enforceable, as it does not order any obligation to perform.
Statutory Basis
The declaratory judgment is specifically governed in German civil procedure law in Sections 256 and 620 of the Code of Civil Procedure (ZPO). The essential requirements for the declaratory action, and thus for a declaratory judgment, are determined in detail by law.
§ 256 ZPO – Declaratory Action
§ 256 (1) ZPO reads:
“An action for a declaration of the existence or non-existence of a legal relationship… may be brought if the plaintiff has a legal interest in having the legal relationship… determined by judicial decision without delay.”
This provision limits the declaratory action to cases in which there is a legitimate interest in a declaration.
Requirements for a Declaratory Judgment
Interest in a Declaration
A central requirement is the Interest in a Declaration of the plaintiff. The interest exists if there is uncertainty for the plaintiff about the legal relationship, and the declaratory judgment provides them with legal clarity and certainty. The interest in a declaration is especially lacking if the plaintiff can, and it is reasonable for them to, bring an action for performance (priority of the performance action).
Examples of Interest in a Declaration
- Imminent limitation period of a claim
- Ongoing threat or disturbance by the opposing party
- Inefficiency of a performance action in the individual case
- Uncertainty about the existence of a legal relationship after fulfillment
Subject Matter of the Declaration
Only the existence or non-existence of a legal relationship or the authenticity/inauthenticity of a document (§ 256 (1) ZPO) can be determined. An abstract legal question or mere facts are not subject to a declaratory judgment. Legal relationships in the sense of the law are concrete, legally regulated relationships between persons or between a person and an object.
Subsidiarity to the Performance Action
According to established case law, the declaratory action, and thus the declaratory judgment, is subsidiary. This means: If it is possible and reasonable to assert a claim for performance, that action must be taken. Only in exceptional cases, such as future or conditional claims, is a declaratory judgment permissible.
Admissibility for Future Legal Relationships
A declaratory judgment pursuant to § 256 (2) ZPO is also permissible regarding a future but already specified legal relationship, for example, for establishing the obligation to pay damages arising from an already occurred event.
Areas of Application for the Declaratory Judgment
Civil Proceedings
In civil law, declaratory judgments are frequently used, for example, to determine liability as a matter of principle (such as establishing that a defendant is liable to the plaintiff for damages from a particular incident, without yet determining the amount). Declaratory judgments are also of central importance in medical malpractice cases, traffic accidents, or tort cases.
Public Law and Administrative Proceedings
Comparable declaratory judgments also exist in administrative procedure law (§ 43 VwGO) and in other codes of procedure, which allow for legal clarification without ordering performance.
Employment Law
In employment law, the declaratory judgment is used, for example, to clarify the existence or non-existence of an employment relationship or to determine periods of company affiliation.
Res Judicata and Effects of the Declaratory Judgment
The declaratory judgment establishes a binding determination between the parties and is binding in future proceedings regarding the same matter in dispute (substantive res judicata, § 322 ZPO). It thereby offers a solid basis for further legal actions, such as subsequent enforcement of performance claims after a declaration has been made.
Special Features and Forms of the Declaratory Judgment
Intermediate Declaratory Judgment
A special form is the Intermediate Declaratory Judgment (§ 303 ZPO). Here, during ongoing proceedings, a decision is made about the existence or non-existence of a legal relationship or a preliminary issue in order to create a basis for the judgment in the pending case.
Negative and Positive Declaration
A declaratory judgment can be issued in the form of either a positive declaration (“something exists”) or a negative declaration (“something does not exist”). The negative declaration primarily serves as a defense against unfounded claims, for example as a negative declaratory action.
Limits of the Declaratory Judgment
A declaratory judgment is inadmissible if there is no legitimate interest protected or if the decision would be abstract or hypothetical in nature. The declaratory action is also excluded if the plaintiff can and it is reasonable for him to bring an action for performance. Furthermore, the scope of the legal relationship to be determined must be specifically outlined; a declaration of general legal questions is not permitted.
International Aspects
Other legal systems sometimes contain comparable legal concepts, although under different terminology, for example the declaratory judgment in Anglo-American law. Nevertheless, there are differences in the areas of application, binding effect, and admissibility conditions.
Summary
The declaratory judgment plays an important role in German procedural law for the final and binding clarification of disputed legal relationships. It enables the protection of parties through early legal certainty, in particular to prevent further or repeated disputes. Its requirements, effects, and legal consequences are comprehensively defined by statutes and case law. The declaratory judgment is a central part of the system of legal protection and serves to maintain legal peace by binding clarification of legal relationships before or in anticipation of a performance action.
Frequently Asked Questions
What requirements must be met to bring a declaratory action?
To bring a declaratory action under § 256 (1) ZPO (Code of Civil Procedure), certain requirements must be met. First, there must be a legitimate legal interest in an immediate determination of the existence or non-existence of a legal relationship. The interest in a declaration presupposes that there is a concrete legal relationship between the parties the clarification of which is important to the plaintiff. The interest is lacking if the plaintiff could achieve their objective through a performance or constitutive action (subsidiarity of the declaratory action). Another requirement is that the disputed question is still open, i.e., an interest in a declaration only exists if there is ambiguity or uncertainty between the parties regarding the legal relationship and this can be resolved by a declaratory action. Finally, there must be no priority of other types of actions; in particular, a performance action must not be possible and reasonable.
In which cases is a declaratory action inadmissible?
A declaratory action is inadmissible if the possibility of a performance action exists and this is also reasonable for the plaintiff. This means, for example, if a claim can be fulfilled by an action for performance (e.g., an action for payment) and this is reasonable, the plaintiff must choose this route. The declaratory action is subsidiary. It is also inadmissible if the interest in a declaration is lacking—such as when the legal relationship has already been conclusively regulated or clarified, or if the outcome of the dispute no longer has practical relevance for the parties (for example, because the legal relationship has ceased to exist due to lapse of time). It is likewise inadmissible if there is no legally relevant uncertainty, or if only an abstract legal question is to be clarified without reference to a concrete legal relationship.
Is the defendant bound by a declaratory judgment?
Yes, both the plaintiff and the defendant are bound by a declaratory judgment that has been issued. The declaratory judgment is binding between the parties (constitutive effect in a broader sense) in that the legal relationship found in the judgment is regarded as binding in any subsequent litigation between the same parties. The substantive res judicata (§ 322 ZPO) prevents the same issue from being brought before the court between the same parties again. However, third parties who were not a party to the proceedings are not affected by this.
How does the declaratory judgment relate to limitation periods?
The bringing of a declaratory action can have effects on limitation periods. According to § 204 (1) No. 1 BGB, the filing of a declaratory action—as with any action for determination of a claim—suspends the limitation period for the claim to which the legal relationship to be determined relates. However, the suspension only occurs if there is indeed an interest in a declaration and the action is admissible. The suspension ends with the final decision or other conclusion of the proceedings.
Can negative declaratory applications also be submitted?
Yes, the law allows for both positive and negative declaratory applications. A negative declaratory application seeks to have the court declare that a particular legal relationship or claim does not exist (“Negative interest in a declaration”). Typical situations include cases where the plaintiff fears being held liable by the defendant or has already been confronted with a demand for performance. The case law also requires a legitimate interest here in clarifying, even before a performance action is brought, that a claim or legal relationship does not exist.
What effect does a declaratory judgment have on third parties?
A declaratory judgment generally has effect only inter partes, that is, exclusively between the parties to the proceedings. Third parties who were not involved in the proceedings are not affected by the res judicata effect of the judgment and can assert their own, differing legal positions. Only in particularly exceptional cases, such as in the context of an undivided estate or legal succession, can the judgment also have effects on third parties.
Can a performance action be reclassified as a declaratory action?
In principle, a performance action can be reclassified as a declaratory action if the requirements for reclassification under § 140 BGB are met and the claim to be determined is sufficiently specific. It is necessary that, from the pleading and facts, it is clear that the plaintiff would also have sought mere declaration of the claim if they had known the inadmissibility of the performance action. The court must always take into account the plaintiff’s interest in a reclassification and must not render a decision less favorable to the plaintiff.
