Concept and Meaning of Suability
The term “suability” in the German legal system refers to the legal possibility of enforcing a specific claim or right by means of a lawsuit before a court. Suability is therefore a central element of judicial enforcement of rights and closely linked to the function of courts to make binding decisions in legal disputes. Whether and under what conditions a claim is suable depends on various statutory provisions and legal principles.
Legal Dogmatic Background
Distinction from Material Entitlement to Claims
Not every existing claim is suable in the legal sense. Suability is distinct from mere entitlement to a claim in that—in addition to the existence of a material claim—procedural requirements must also be met. Suability therefore presupposes that the asserted claim can be judicially enforced via legal proceedings.
Relation to the Right to Judicial Protection
Suability is directly linked to the right to judicial protection, which is enshrined in the Basic Law Article 19 paragraph 4. This ensures that any person who feels their rights are violated by state authority has the possibility to pursue legal recourse, provided that there are no statutory exclusion provisions.
Requirements for Suability
Statutory Basis
The suability of a claim generally arises from substantive law provisions, e.g., the German Civil Code (BGB) or the German Commercial Code (HGB), as well as from procedural provisions, especially the Code of Civil Procedure (ZPO), the Code of Administrative Court Procedure (VwGO), or the Fiscal Court Code (FGO).
1. Substantive Law Requirement
A claim must be substantiated by substantive law. Claims that are merely of factual nature or that violate higher-ranking law are, for example, not suable. Furthermore, statutory exclusions of suability may exist, for instance in the case of purely political programmatic statements or international legal norms that cannot be implemented domestically.
2. Procedural Requirements
A claim is only suable if the procedural code—such as the ZPO, VwGO, or FGO—permits a lawsuit and no procedural barriers prevent it. This includes that the plaintiff is competent to sue, the claim is sufficiently specific (§ 253 para. 2 ZPO), and no special statutory grounds for exclusion exist.
Exclusion of Suability
There are statutory cases in which a claim is excluded from judicial enforceability. These include:
- Non-suable Programmatic Statements
Constitutional programmatic statements, such as Article 20a GG (protection of the natural foundations of life), are exempt from judicial review and suability.
- Non-enforceable Claims
Claims without legally binding enforceability, such as strictly personal rights (e.g., a promise to marry), are not suable.
- Special Provisions in Special Law (e.g., Social Law)
Exclusions of lawsuits are regulated in social law, e.g., with respect to certain administrative acts.
Types of Suability
Direct and Indirect Suability
- Directly suable rights are those for which the claimant can file suit directly.
- Indirect Suability exists in constellations where an administrative procedure or a dispute-resolving preliminary decision is first required.
Absolute and Relative Suability
- Absolute Suability exists when the claim is always fully enforceable in court.
- Relative Suability describes cases where judicial enforceability is tied to additional requirements (e.g., deadlines, administrative proceedings, attempts at conciliation).
Suability in Different Areas of Law
Civil Law
In civil law, all claims related to property and certain non-property rights are generally suable unless expressly excluded by law (§ 194 BGB: Claim).
Public Law
In public law, suability depends on the existence of an ‘infringement of one’s own rights’ as well as a ground for action (e.g., § 42 para. 2 VwGO). Certain administrative measures are suable only to a limited extent or not at all, such as evaluative and discretionary decisions.
Criminal Law
Suability in criminal law refers to the possibility of asserting criminal law claims, especially accessory or private prosecutions, in one’s own name during criminal proceedings. Criminal prosecution itself is generally the prerogative of the state and is therefore not suable in a civil law sense.
Limits of Suability
Legally Binding Decision
Once a legal proceeding is concluded with final authority, the same claim cannot be sued again (ne bis in idem, legal force effect).
Exclusion by Law
The legislature can restrict or exclude the suability of individual claims by specific laws, for example through immunity regulations or expropriation laws.
Aspects of International Law
In international law, suability is often limited, as individuals can generally only sue states if relevant individual complaint mechanisms have been established (e.g., the European Court of Human Rights).
Suability Examination Scheme
The examination of the suability of a claim proceeds in several steps:
- Existence of a Substantive Law Claim
- No statutory bars to filing suit
- Fulfillment of all procedural requirements
- No res judicata or other loss of rights
Significance of Suability for Legal Protection
Suability is a fundamental element for the enforceability of rights in a state governed by the rule of law. It ensures that individual rights do not merely exist in the abstract, but can also be effectively enforced when denied by a counterparty. The limitation or exclusion of suability therefore directly affects the principle of effective judicial protection.
References
- BGHZ 79, 291 ff. – On the Concept of a Claim
- Kopp/Schenke, VwGO, Commentary § 42 para. 2
- Brox/Walker, General Part of the BGB, §§ 194 ff.
- Rosenberg/Schwab/Gottwald, Civil Procedure Law
Conclusion
Suability is a core element for effective legal protection and the guarantee of individual claims in the German legal system. It is subject to specific substantive and procedural requirements, but is limited by various statutory and factual barriers. An examination of suability is essential before asserting a right in order to avoid procedural and substantive disadvantages and to ensure access to a judicial decision.
Frequently Asked Questions
What requirements must be met for a claim to be suable?
A claim is suable if it can be enforced in court, i.e., the claimant has the legal ability to assert their demand through legal proceedings. Several conditions must be fulfilled: first, the asserted claim must actually exist, i.e., be justified under substantive law. Second, there must be no permanent or temporary impediment to suability, such as a deferral, suspensive condition, or limitation period. Third, the lawsuit must be admissible, which includes procedural requirements such as legal capacity, capacity to sue, need for legal protection, and proper filing of the suit. Moreover, there must be no defense against the claim that would temporarily or permanently impede its enforceability in court.
Can time-barred claims still be sued for?
A time-barred claim generally continues to exist under civil law but is usually no longer suable because the debtor has a permanent defense of limitation. This means that the court will dismiss the claim if the debtor invokes the limitation. If the creditor files suit despite the time limitation, the lawsuit is admissible but unfounded if the debtor asserts the defense. Only if the limitation defense is not raised can a legally enforceable judgment be issued for a time-barred claim.
Is a lawsuit still possible if a suspensive condition has been agreed upon?
A claim subject to a suspensive condition (§ 158 para. 1 BGB) is not enforceable and thus not suable until the condition has been met. Procedurally, the result is that the suit would be dismissed as currently unfounded. Only upon fulfillment of the condition does the claim become suable. Exceptions exist if the occurrence of the condition is highly likely and a declaratory action under § 256 ZPO could be admissible.
How does the raising of a defense influence the suability of a claim?
The raising of a defense by the debtor means that a claim that otherwise exists can no longer be enforced and is therefore not suable. Typical defenses include the statute of limitations, deferral, and the defense of non-performance of contract (§ 320 BGB). If the debtor asserts the defense during proceedings, the suit will be dismissed in this regard. The effect remains until the defense is removed or is no longer asserted; the suability of the claim is thereby temporarily suspended.
What role does the need for legal protection play in the suability of a claim?
The need for legal protection is a mandatory procedural requirement for any lawsuit. It exists only if the plaintiff has a legitimate interest in a judicial decision. If there is no need for legal protection, the lawsuit is inadmissible regardless of the existence of the claim. Typical cases of absent need for protection include situations where the defendant has already fully acknowledged and satisfied the claim or when there is already a final judgment on the same subject matter.
How does suability differ from the enforceability of a claim?
Suability describes the possibility of asserting a claim before a court by means of a lawsuit, i.e., first obtaining judicial review and determination. Enforceability, on the other hand, refers to the ability to subsequently enforce the judgment, if necessary by compulsory measures. There are situations in which a claim is suable but not yet enforceable, such as when claims are subject to a time limit or deferral. Only when a claim is due and no further defenses or objections exist is it fully enforceable.
Does an arbitration agreement affect suability before state courts?
An arbitration agreement creates a bar to suing before state courts under §§ 1026, 1032 ZPO. It renders the claim not suable before state courts as long as the parties have validly agreed to arbitration and there are no mandatory legal provisions overriding arbitration jurisdiction. Suability before an arbitral tribunal, however, remains. Violation of the arbitration agreement usually results in inadmissibility of the suit before the ordinary courts.
Can a claim remain suable after the death of the creditor or debtor?
Claims generally remain suable even after the death of the creditor or debtor, as they usually pass to the heirs. The statutory rules of universal succession (§ 1922 BGB) mean that the deceased’s claims and liabilities are transferred to the heir or heirs and can be sued for by or against them. Exceptions may arise only in the case of strictly personal rights or specific statutory regulations in which the claim expires and is therefore no longer suable.
