Concept and Definition of the Dilatory Defense
Die dilatory defense is a term from German civil procedural law and substantive civil law. It refers to a special form of defense, by which the creditor’s claim is not permanently, but only temporarily—i.e., until the reason for the defense is resolved—rejected or suspended. In this case, the debtor can invoke that they are not currently (yet) obliged to perform, even though the claim basically exists and would be enforceable.
A dilatory defense is a procedural and substantive legal remedy that postpones the right to sue or the immediate enforcement of a right for a certain period of time.
Distinction from Other Defenses
Difference from Peremptory Defense
The dilatory defense must be distinguished from the peremptory defense While the peremptory defense permanently and finally frustrates the enforceability of the claim (e.g., the defense of limitation according to § 214 BGB), the dilatory defense merely postpones the assertion of the claim to a later date.
Objection versus Defense
Defenses are to be distinguished from objections An objection concerns the emergence or continued existence of the claim itself (e.g., § 275 BGB: impossibility). The defense, on the other hand, presupposes the existence of the claim and merely prevents its immediate enforceability.
Legal Principles
Statutory Dilatory Defenses
German law knows several statutory regulated dilatory defenses. These include, among others:
- Defense of Non-Performance of Contract (§ 320 BGB): The debtor may refuse the performance owed as long as the creditor has not tendered the counter-performance due to him.
- Defense of Right of Retention (§ 273 BGB): As far as a due claim exists in favor of the debtor against the creditor, performance may be refused until the counter-performance is rendered.
- Postponement (temporary rights to refuse performance): If the maturity of a claim is postponed (e.g., by deferment agreement), the debtor may refuse performance until the period of deferment has expired.
Requirements and Effects
In order to effectively assert a dilatory defense, the respective statutory requirements must be fulfilled. The defense usually must be expressly raised (§ 320 sentence 2 BGB analogously), unless it is to be considered ex officio. Raising the defense has the effect that the claim is not immediately enforceable. Once the reason for the defense ceases to exist, the enforceability is revived.
Examples of Dilatory Defenses
- § 320 BGB – Defense of Non-Performance of Contract: The buyer may refuse payment as long as the seller does not deliver the goods.
- § 438 (4) BGB – Defense of Non-Acceptance: The seller may refuse to hand over the purchase item until acceptance if the buyer has failed to fulfill their duty of acceptance.
Procedural Significance
Effect in Civil Proceedings
In civil proceedings, the dilatory defense functions as a means of defense. The debtor must substantiate his right to refuse performance. The court will then examine whether the grounds for the defense are present and will dismiss the claim to that extent or stay the proceedings until the defense ceases to apply.
Difference Between Procedural and Substantive Defense
A distinction is made between substantive defenses, which relate to the underlying obligation, and procedural defenses, which target procedural requirements. Dilatory defenses typically occur in substantive law but can also touch upon procedural aspects (such as the defense of lis pendens, § 261 (3) No. 1 ZPO).
Legal Consequences of a Dilatory Defense
Suspension of the Obligation to Perform
The exercise of a dilatory defense suspends the maturity or enforceability of the claim, but the claim itself does not expire. The refusal to perform continues as long as the party raising the defense maintains and the defense exists.
Revival of the Claim
Once the reason for the defense has been removed – for example, once the counter-performance is rendered – the creditor can enforce their claim again. The dilatory defense is therefore temporary and provides the debtor with a time-limited protection against the assertion of the claim.
Practical Relevance and Importance
Dilatory defenses serve in many constellations to protect the debtor and enforce interests such as synallagma, concurrent performances, or the temporal postponement of contractual obligations. They form a significant part of the legal remedies in the law of obligations and procedural law.
Summary
Die dilatory defense is a central institution of German law of obligations and civil procedural law. It allows the debtor to temporarily defend against an existing claim by suspending its immediate enforceability. The dilatory effect of the defense does not result in a permanent bar but only a temporary refusal to perform. It substantially contributes to maintaining the balance of judicial and extrajudicial interests between creditor and debtor. Under competition law and contract law, it has great practical significance, especially in the area of reciprocal contracts, security rights, and negotiation instruments.
Frequently Asked Questions
What legal requirements must be met to raise a dilatory defense in civil proceedings?
Raising a dilatory defense in civil proceedings requires certain legal prerequisites. Firstly, the law must provide for such a defense at all—that is, there must be a provision in the relevant substantive law granting the debtor a temporary right to refuse performance (e.g., § 273 BGB, right of retention, or § 320 BGB, defense of non-performance of contract). Furthermore, the relationship giving rise to the defense must exist in fact and in law; this includes the existence of a counterclaim or a right to withhold a legal interest. The defense must be expressly asserted in the proceedings, as it is not a fact that the court considers ex officio (generally the principle of party disposition, see § 296 ZPO). Finally, the timing for raising the defense must be observed: it must regularly be asserted at the latest by the end of the hearing at first instance (§ 296 (1) ZPO), otherwise preclusion may occur.
What are the consequences of asserting a dilatory defense for the court proceedings?
Asserting a dilatory defense means that the court generally examines the existence of the main claim, but due to the temporary right to refuse performance, the claim is provisionally not granted. The claim is therefore usually dismissed as currently unfounded, not permanently. This means that the creditor may assert the claim again as soon as the obstacle to the claim has been removed, for example because the creditor’s performance has been subsequently rendered or the right to refuse performance ceases otherwise. Procedurally, this does not result in final res judicata regarding the claim itself (see § 322 (1) BGB), but only in a temporary dismissal of the claim.
How does the dilatory defense differ from the peremptory defense from a procedural perspective?
From a procedural perspective, the dilatory defense differs significantly from the peremptory defense. While the peremptory defense (e.g., limitation, res judicata, § 214 BGB) permanently removes the creditor’s right of enforcement and leads to a final dismissal, the dilatory defense only grants the debtor a temporary right to refuse performance. The court dismisses the claim only to the extent and for as long as the obstacle to the defense exists. Thus, the possibility of a later legal assertion of the claim remains. Dilatory defenses therefore have exclusively temporary effect and are deferring defenses, while peremptory defenses are permanent bars.
Does the dilatory defense have to be expressly asserted, or can it also have implicit effect?
In procedural law, the principle of subsidiarity of judicial intervention applies, i.e., the court will only consider a dilatory defense if it is expressly raised by the defendant (§ 296 ZPO). Unlike materially possible automatic defenses (“defenses that need not be expressly asserted”), German civil procedural law establishes the system of so-called “Einlassungspräklusion” and requires clear presentation of the defense. An implicit assertion is sufficient only if the defendant’s statement unambiguously shows reliance on a dilatory defense (e.g., explicit claim that the plaintiff has not performed when invoking the defense under § 320 BGB).
What role does the dilatory defense play in reciprocal contracts under the BGB?
In reciprocal contracts, the dilatory defense, specifically the defense of non-performance of contract (§ 320 BGB), plays a central role. In a synallagmatic relationship, each party may refuse the performance owed by them as long as the other party does not offer or render their counter-performance. This right to refuse performance is generally dilatory, i.e., it postpones the enforceability of the plaintiff’s claim as long as the plaintiff’s owed performance is outstanding. Only when the counter-performance is rendered or properly tendered does this defense lapse, and the claim becomes enforceable. The dilatory defense thus serves to protect against advance performance and safeguard the equivalence interest between contracting parties.
What effect does the removal of the defense factor have on the effectiveness of an already dismissed claim?
If an action is dismissed solely due to the assertion of a dilatory defense and the ground for the defense later disappears (e.g., payment or provision of the required advance performance), the plaintiff may assert the claim again in court. The final decision in the first instance does not have res judicata effect in relation to the substance of the claim, but only with regard to the procedural circumstances at the time (dilatory character). In a new lawsuit, no plea of res judicata arises from the earlier dismissal, as the obstacle of the dilatory defense no longer exists and the main claim is again justiciable. The possibility of bringing a new action therefore remains intact.
Which special dilatory defenses should be considered under German law?
In German civil law, numerous specifically regulated dilatory defenses exist. In practice, besides the right of retention under § 273 BGB and the defense of non-performance of contract (§ 320 BGB), the right to refuse performance by the pre-emptive right holder (§ 463 sentence 2 BGB), the defense of non-performance of a surety contract (§ 770 BGB), and the right to refuse performance due to deferment (§ 205 BGB) are especially relevant. There are also special legal provisions, for example in tenancy law (§ 556b (2) BGB – defense in case of advance payments for ancillary costs) or contract for work law (§ 641 (3) BGB – defense in the case of significant defects). For each type of defense, the specific statutory requirements and its direct impact on the performance relationship must always be observed.
