Third-Party Objection Action
The third-party objection action is a term from German civil procedure law, which is particularly significant in the context of enforcement law. It serves to protect third parties whose rights are affected by enforcement proceedings. The legal basis, requirements, procedure, and practical implications of the third-party objection action are comprehensively presented below.
Concept and Legal Basis
The third-party objection action, referred to in the law as “Drittwiderspruchsklage” (§ 771 Code of Civil Procedure – ZPO), is a legal remedy by which a person not involved in the proceedings may challenge an enforcement measure if they claim that the object of enforcement belongs to them wholly or in part or that they have a right to the object that prevents its disposal.
Statutory Regulation
The third-party objection action is regulated in § 771 ZPO:
“A third party who claims to have a right preventing the disposal of the object from which the enforcement is being effected may bring an action against the creditor for the revocation of the enforcement measure and the prohibition of further enforcement measures.”
Distinction from Similar Legal Remedies
The third-party objection action must be distinguished from other enforcement protection actions, particularly the objection to enforcement (§ 767 ZPO), by which the debtor asserts substantive objections to the entitled claim. By contrast, the third-party objection action is brought exclusively by the third party.
Requirements for the Third-Party Objection Action
Admissibility Requirements
For the third-party objection action to be admissible, the following preconditions must be met:
- Existence of an enforceable title and ongoing enforcement proceedings: Enforcement must actually be carried out against a debtor.
- Third-Party Ownership or a Right Preventing Disposal: The plaintiff must plausibly assert that they own the enforcement object or have another right to it (e.g., usufruct, lien).
- Impairment by the Enforcement Measure: The rights of the third party must be affected by the specific enforcement measure.
No Alternative Legal Remedy Available
The action is inadmissible if the third party can assert their right against the creditor by other means, such as by objection in insolvency proceedings or during ongoing enforcement of surrender. Other means of legal protection must therefore primarily be considered.
Subject Matter and Purpose of the Third-Party Objection Action
The third-party objection action is usually brought against the enforcement creditor and is aimed at revoking enforcement acts already carried out as well as prohibiting future measures. In particular, the following objectives are possible:
- Revocation of garnishments of movable property or bank account seizures
- Return of seized items to the third party
- Prohibition of further acts of seizure concerning the disputed property
According to prevailing opinion, the debtor of the enforceable title may join as a third party intervener on the side of the third party but is not necessarily a party to the proceedings.
Course of the Proceedings
Filing the Action and Party Status
The action must be filed with the court of first instance which was competent for the original title (§ 771 para. 1, § 802 ZPO). The parties to the action are the third party as plaintiff and the enforcement creditor as defendant. The debtor may be included but is not necessarily involved.
Burden of Proof
The third-party plaintiff bears the burden of proof for actually holding the asserted right. The creditor, on the other hand, carries the burden of proof for the prerequisites of enforcement against the contested assets.
Legal Protection and Provisional Protection
Until a decision is made on the action, the plaintiff may, under certain circumstances, apply for interim legal protection (§ 935, § 940 ZPO) to prevent irreversible harm resulting from enforcement.
Legal Consequences and Costs
If the third-party objection action is successful, enforcement measures already carried out must be reversed. The creditor remains liable for the damages incurred, insofar as they were caused by the wrongful enforcement. If the action is dismissed, the third party may be liable for damages if the action was brought abusively.
The costs of the legal dispute are borne by the losing party, § 91 ZPO. In addition, a cost-setting procedure may be required.
Typical Cases of Application
Typical cases for the third-party objection action include:
- Seizure of items in the household of a third party who owns the items
- Seizure of a vehicle registered to a third party who can prove ownership
- Account garnishment at a bank where the balance belongs to a third party
- Forced auction of real estate on which a third party holds a property right (e.g., usufruct)
Distinction from Other Types of Actions in Enforcement Law
Enforcement law distinguishes between different types of actions, each serving different legal protection interests. The most important at a glance:
- Objection to Enforcement (§ 767 ZPO): Serves the debtor to contest the entitled claim on substantive legal grounds.
- Third-Party Objection Action (§ 771 ZPO, Einmischungsklage): Brought by the third party to defend their rights to the enforcement object.
- Action for Preferential Satisfaction (§ 805 ZPO): The third party asserts that they rank before the enforcement creditor (e.g., lien).
Third-Party Objection Action in the International Context
German law provides, with the third-party objection action, a means of legal remedy for third parties in enforcement that meets international standards. Comparable regulations exist, for example, in Austrian and Swiss law, although there are sometimes differences in procedure and scope of application. In cross-border enforcement matters, the law at the place of enforcement is particularly decisive.
Literature and Further Information
- Enforcement Law, Volume 2, Munich Commentary on the ZPO, § 771 ZPO
- Thomas/Putzo, Code of Civil Procedure, § 771 ZPO
- Musielak/Voit, ZPO Commentary, § 771 ZPO
Conclusion
The third-party objection action constitutes a central means of legal protection for third parties under German enforcement law. It effectively protects the property and rights of third parties from unlawful state enforcement measures. Precise observance of its legal requirements, procedure, and clear distinction from other types of legal action is indispensable for successfully enforcing one’s rights.
Frequently Asked Questions
Who is entitled to bring a third-party objection action?
In principle, any person whose subjective rights have been infringed by interference in their legal sphere, or who is threatened by a concrete and serious risk of interference, is entitled to bring a third-party objection action. In the civil law context, this often concerns owners or direct possessors who seek to defend themselves against interference by third parties, especially against disturbance of possession or ownership. Standing (active legitimation) regularly requires that the plaintiff is the holder of the right violated by the contested act—such as the right to their own property. Legal persons and (in particular circumstances) indirect possessors may also have standing if their legal position is affected. In asserting public rights, such as in administrative proceedings, specific requirements concerning standing apply, as one must often additionally show that their own subjective rights have been infringed.
Against whom can a third-party objection action be directed?
The third-party objection action can be directed against any natural or legal person responsible for the contested interference with the protected legal sphere. This may be the direct disturber who commits the interference themselves, or the indirect disturber, who causes or facilitates the interference by providing facilities or means. The law often distinguishes between actors (Handlungsstörer) and condition disturbers (Zustandsstörer). The passive legitimation refers to the defendant’s material responsibility for the interference, which is a decisive prerequisite for the prospects of success in the action. In property law, the action may, for example, be brought against a neighbor who impairs the plaintiff’s property right through encroachment, emissions, or other unlawful acts.
What deadlines must be observed in a third-party objection action?
Depending on the type of interference, a third-party objection action may be subject to different statutory periods (limitation or, where applicable, exclusion periods). In civil law, the standard three-year limitation period under § 195 BGB generally applies, beginning at the end of the year in which the claim arose and the claimant became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence. In public law, the periods vary according to the relevant special statute; for instance, in construction law, an appeal may be required within one month after notification of an administrative act. If the plaintiff misses the respective deadline, the action is regularly inadmissible or unfounded.
What are the legal consequences of a successful third-party objection action?
A successful third-party objection action primarily results in the obligor being required to refrain from further interference; this may also include the elimination of interferences already committed, insofar as this is legally permissible and practically possible. Additionally, claims for damages may arise in individual cases if the rights holder has suffered financial loss from the interference. The court may, depending on the legal entity involved and the type of interference, issue a preliminary injunction to promptly and effectively prevent further infringement. The specific arrangements depend on the relevant substantive and procedural provisions.
What is the typical procedure for a third-party objection action?
The procedure in a third-party objection action is guided by the general procedural principles of the relevant court branch (civil or administrative courts). The proceedings begin with the formal filing of the action, in which the plaintiff outlines the facts, the specific legal violation, and the objective of the action, and submits supporting evidence. This is followed by the service of the action on the defendant, ensuring their right to be heard. After the completion of the written preliminary proceedings, an oral hearing usually takes place, in which the court discusses the facts and legal position and hears from the parties. By taking evidence, especially by hearing witnesses, submitting documents, or site inspections, the court seeks to establish the decisive facts. The proceedings end with a judgment that definitively sets out the rights and obligations of the parties. In urgent cases, the court may grant interim legal protection (e.g., by issuing a preliminary injunction).
What special requirements apply to evidence in a third-party objection action?
The burden of proof for the existence of an unlawful interference generally lies with the plaintiff. They must state and, if contested, prove that a rights violation or a concrete risk of interference with their protected legal interest actually exists. Suitable evidence includes documents, photographs, expert reports, or witnesses who can substantiate the facts. In certain areas of law, evidentiary relief applies, for instance, when the condition of a facility typically leads to specific emissions. At the same time, the defendant may also present and prove circumstances justifying the legality of their actions or the lack of infringement. The court evaluates all the evidence at its discretion (§ 286 ZPO).
What role do out-of-court steps play before filing a third-party objection action?
Before resorting to the courts, it is advisable in many cases to first take out-of-court action against the interference, such as by issuing a written warning or a demand to cease or remedy the disturbance. In some proceedings, such as in neighbor law, preliminary mediation or conciliation proceedings are even legally required (e.g., § 15a EGZPO in conjunction with state laws). Such measures can reduce the risks and costs associated with court proceedings and establish a basis for an amicable solution. If an amicable agreement cannot be reached, the out-of-court actions document the seriousness of the request and may facilitate the presentation of one’s position in the lawsuit.
