Movable assets, enforcement against movable assets
Definition and concept of movable assets
Movable assets form a fundamental component of civil law and describe all assets that are physically movable and are therefore to be distinguished from immovable assets (in particular, real estate and rights equivalent to real estate). This includes, in particular, items such as vehicles, machinery, cash, jewelry, works of art, inventory, as well as animals. Immovable items such as land, houses, or residential property do not fall under this term.
Rights that are not firmly attached to real estate and are transferable or alienable can also be considered movable assets. These include, among others, securities, claims, shares in movable assets, and certain usage rights.
The legal distinction is particularly made in German law in Sections 90 ff. of the German Civil Code (BGB), whereby an item is deemed movable if it is not to be regarded as a component of real estate or a building.
Legal basis for enforcement against movable assets
General information about enforcement
Enforcement against movable assets refers to the state-regulated procedure by which creditors can enforce their titled claims against a debtor. The legal basis for this is mainly found in the German Code of Civil Procedure (ZPO), especially in Sections 803 ff. ZPO.
Requirements for enforcement
Enforcement generally requires an enforcement title (e.g. an enforceable judgment, enforcement order, or other enforceable documents) as well as the enforcement clause and service to the debtor (Section 750 ZPO). In addition, the assets to be enforced must not be explicitly exempt from seizure (see Section 811 ZPO).
Types of enforcement against movable assets
1. Seizure of property by the bailiff
A central form of enforcement against movable assets is the seizure of property, which is carried out by the responsible bailiff. The bailiff is authorized to seize all movable items of the debtor that are suitable to satisfy the creditor’s claim (§§ 808 ff. ZPO).
The act of seizure extends to the physical removal and legal taking into possession of the item by the bailiff. The seized items are usually left in place (safekeeping) but can also be removed and stored upon request.
Realization is usually carried out by public auction (§ 814 ZPO), with the proceeds, after deduction of costs, being distributed to the creditor to satisfy the claim.
Frequently seized items:
- Motor vehicles
- Cash
- Jewelry and valuables
- Electronic devices (e.g. TV, computer)
- Furniture and valuables
2. Attachment of claims
Moreover, the law permits the attachment of claims by the debtor against third parties (third-party debtors). The most common examples are wage and account seizures (§§ 829 ff. ZPO), where income or bank balances below certain statutory limits are seized and paid to the creditor by way of an attachment and transfer order.
The following property rights, for example, may be affected by the attachment of claims:
- Salary and wage claims (subject to corresponding exemptions from seizure)
- Bank balances, savings deposits
- Outstanding claims against third parties
Exclusion and restrictions on enforcement
Not every movable asset is subject to enforcement. Legal regulations limit access to certain items to protect the debtor and their family from losing their livelihood.
Non-seizable items
Section 811 ZPO contains an exhaustive list of non-seizable items. These include, among others:
- Items for personal use or household purposes, as far as necessary for a modest lifestyle and household management (e.g. clothing, beds, basic furniture)
- Tools essential for professional activity
- Aids for the sick and disabled
- Pets, provided they are not used for gainful employment
Restrictions on attachment of claims
There are also statutory exemption limits for the attachment of employment income (§ 850c ZPO), which are regularly adjusted. The non-seizable share serves to secure the debtor’s subsistence minimum and that of their dependents.
Procedure and process of enforcement against movable assets
The enforcement process usually comprises the following steps:
- Application: The creditor applies for seizure of property or claims with the competent enforcement body (bailiff, enforcement court).
- Execution of seizure: The bailiff visits the debtor’s address, records seizable items, and effectively seizes them by taking possession or affixing a seal.
- Realization: Seized movable assets are realized, usually by auction or private sale (§§ 814, 817 ZPO).
- Distribution of the proceeds: The proceeds from realization are first used to cover costs, with the remainder used to satisfy the creditor’s claim.
In the case of attachment of claims, after the order is issued, the third-party debtor is notified of the attachment and is then obliged to transfer the attached claim to the creditor.
Special features and legal remedies
The debtor may take legal action against enforcement measures. This includes, in particular, a reminder (Section 766 ZPO) and, in case of procedural violations, immediate complaint (Section 793 ZPO). Non-seizable items can be protected through objection (Section 771 ZPO); third parties also have the right to judicial proceedings to defend against unjustified attachments.
Summary
Movable assets and their compulsory enforcement are central instruments for asserting private claims under German law. The legal regulations ensure effective protection for creditors while various restrictions guarantee basic protection for debtors. Enforcement against movable assets includes both the seizure of property and the attachment of claims, with extensive regulations restricting access to assets necessary for subsistence.
See also:
- [Unbewegliches Vermögen und Zwangsvollstreckung in unbewegliches Vermögen]
- [Pfändungsschutz]
- [Insolvenzverfahren]
Frequently Asked Questions
What requirements must be met for enforcement against movable assets?
In order to legally effect enforcement against a person’s movable assets, an enforceable title is first required, such as a final judgment, an enforcement order or a notarial deed with an enforcement clause. The creditor must submit this title together with proof of delivery to the debtor to the enforcement authority, for example the bailiff. As a rule, an enforcement mandate must also be issued to the bailiff. The debtor must also be identifiable and possess seizable movable assets. Movable assets include in particular tangible items such as vehicles, jewelry or movable machinery, but also certain rights (such as claims under savings books). Another requirement is that there are no statutory obstacles to enforcement, such as a discharge of residual debt in insolvency proceedings or protection against enforcement under Section 765a ZPO.
How is the seizure of movable assets actually carried out?
The seizure typically begins with the bailiff entering the debtor’s business or residential premises. However, this is only permitted during certain hours and in compliance with the inviolability of the home as enshrined in the Basic Law. During the seizure process, the bailiff prepares a seizure protocol listing the seized items. Seized items are either left on-site and sealed (known as ‘sealing’) or are immediately taken into custody and removed. From this point on, the seized items are subject to a prohibition on sale to the detriment of the debtor. Movable items that are indispensable for the debtor to cover their essential needs (e.g. clothing, household goods, a worker’s tools) are generally non-seizable under Section 811 ZPO.
What legal remedies are available to the debtor against enforcement on their movable assets?
The debtor may lodge various legal remedies against enforcement. An important means is the reminder in accordance with Section 766 ZPO, which can be used in particular to object to formal errors during enforcement. If there are substantive objections to the claim, for example, performance of the debt, an action to oppose enforcement in accordance with Section 767 ZPO may be filed. In addition, the debtor can apply for the annulment or temporary suspension of enforcement under Section 769 ZPO, especially if unreasonable hardship or a threat to their livelihood is imminent. Further, it is possible to apply to the competent enforcement court for protection against enforcement under Section 765a ZPO on grounds of unreasonableness or special personal hardship.
What happens to the seized items after the seizure?
After the effective seizure of movable assets, the bailiff usually organizes a public auction, at which the seized items are auctioned off. The proceeds are used to satisfy the creditor. The bailiff must publicly announce the auction and allow interested bidders to inspect the items. The net auction proceeds—after deduction of enforcement costs—are paid out to the creditor; any surplus is received by the debtor. If the seized item proves unsaleable or of little value, the bailiff may refrain from further realization and leave the item with the debtor.
Are all movable items subject to seizure?
No, certain items are exempt from seizure for social and humanitarian reasons under Section 811 ZPO. These include, among others, items of clothing, household goods, beds, kitchen utensils, and other similar household necessities, as well as items indispensable for one’s occupation (e.g. tools, work clothing). Electronic devices necessary for a normal standard of living (e.g. a basic mobile phone or television) may also be non-seizable in individual cases if they do not constitute excessive luxury. Pets are also generally non-seizable under Section 811c ZPO in accordance with animal protection regulations.
What special provisions apply to enforcement against motor vehicles?
With regard to motor vehicles, it should be noted that these are generally seizable as movable assets. However, the bailiff checks whether the vehicle is necessary for the debtor’s continued employment or for the fulfillment of essential tasks, for example, for self-employment or for disabled persons. In such cases, seizure may be waived if removing the vehicle would constitute unreasonable hardship. When a vehicle is seized, it is often immediately secured, for example, by being towed or impounded, to prevent the debtor from making it unavailable.
How does enforcement against claims from movable assets (e.g. bank balances, wages) work?
Enforcement against the debtor’s claims against third parties is carried out by means of an attachment and transfer order issued by the enforcement court. Examples include bank balances and wage claims. The bailiff or creditor applies for the order with the enforcement court. Upon delivery of the order to the third-party debtor (e.g. the bank or employer), that party is obligated not to pay the claim to the debtor but instead to transfer it to a specified creditor’s account. Here, too, certain exemptions from attachment apply, such as for wages and social benefits, to safeguard the debtor’s socio-cultural minimum subsistence level.
