Unenforceable Claims: Concept, Legal Classification, and Significance
Definition and Distinction
The term “unenforceable claims” refers to legal claims that exist in principle but whose assertion in court is excluded for legal reasons. Unenforceable claims, therefore, contrast with enforceable claims, which can be asserted before courts. The phenomenon of unenforceability mainly concerns civil law but may also play a role in public law. The enforcement of such claims is precluded by statutory regulations, moral considerations, or agreements—even if a substantive legal claim exists in principle.
Legal Basis of Unenforceable Claims
Unenforceable claims are not regulated in a single statutory provision, but result from various norms of the German Civil Code (BGB) as well as principles established by case law.
Statutory Provisions
Several provisions of the BGB and related statutes identify claims whose judicial enforcement is excluded. These include, for example:
- Claims from games and bets (§ 762 BGB): According to § 762 para. 1 BGB, there is no claim to payment of winnings from a game or bet unless the game is officially authorized. However, services already rendered cannot generally be reclaimed (§ 762 para. 2 BGB).
- Claims from relationships of favor: Obligations based purely on favor (e.g., neighborly help without legal intent to be bound) are deemed unenforceable unless an explicit agreement regarding their binding nature has been made.
Unenforceability due to Immorality (§ 817 sentence 2 BGB)
If a benefit has been provided for an unlawful or immoral purpose, not only is the original claim excluded, but also a claim for return (§ 817 sentence 2 BGB). Thus, unenforceable claims also arise in these cases.
Public Law Unenforceable Claims
In public law, unenforceable claims can also exist, for example in so-called acts of social law administration with binding effect, whose content may be partially removed from judicial scrutiny.
Typical Types and Case Groups
1. Claims from Games, Bets or Favors
- Games and Bets (§ 762 BGB): If a game or bet is entered into between private individuals, there is no enforceable claim to fulfillment. The unenforceability concerns both the winnings and the payment owed by the loser. This serves, among other things, to protect against gambling addiction and over-indebtedness.
- Relationships of Favor: Gratuitous acts of assistance (e.g., transporting a neighbor) where no legally binding contract is concluded, are deemed legally non-binding. Claims that may arise (e.g., reimbursement of expenses) cannot generally be enforced in court—unless a contract is recognized.
2. Claims for Protection of Honor and Family Law Claims
- Personal Rights: Under certain circumstances, especially with highly personal rights, a claim for performance may be excluded, or the focus may shift to injunctions and removal rather than immediate enforceable payment or damages.
- Obligations arising from marriage and engagement: Claims for the restoration of marital relations or the entering into of marriage are unenforceable under § 1297 para. 1 BGB. The same applies to the claim to establish a domestic community.
3. Claims arising from immoral or unlawful acts
If a contract is concluded that violates applicable law or good morals (§ 138 BGB), the resulting claims are mostly unenforceable. A claim for restitution pursuant to § 817 sentence 2 BGB is also excluded if the party rendering performance has themselves violated a statutory prohibition or good morals.
Legal Consequences of Unenforceable Claims
Fulfillment Despite Unenforceability
Unenforceability does not preclude a claim from being fulfilled. If the debtor performs voluntarily, the performance cannot be contested. Recovery of what has been performed is generally not possible unless the law provides otherwise (e.g., § 762 para. 2 BGB).
Exclusion of Enforcement in Court
An unenforceable claim does not grant an effective legal right, as it cannot be asserted before civil courts. This applies to claims for both performance and injunction.
Effect on Limitation and Set-Off
Limitation periods do not apply to unenforceable claims, since their judicial assertion is excluded. Set-off with unenforceable claims is also not possible (§ 387 BGB requires a ‘demandable claim’).
Reasons and Objectives for Unenforceability
Protection of Personal and Social Relationships
The legal system and judiciary protect, through unenforceability, especially highly personal and social relationships from state intervention (e.g., marriage, engagement, relationships of favor).
Protection against Abuse of Rights and Immorality
The exclusion of enforceability also serves to remove illegal or immoral claims from judicial review, thereby protecting the legal system from abuse.
Distinction: Unenforceability vs. Invalidity and Inexigibility
Unenforceable claims must be distinguished from invalidity. While an invalid claim does not exist legally, unenforceable claims are existing claims that cannot be enforced in court. ‘Inexigibility’ must also be differentiated, as it usually refers to a factual, not a legal, obstacle.
Individual Cases and Special Provisions
Claims from Torts
Claims aimed at protection of honor or other personal rights may, in exceptional cases, be declared unenforceable if their assertion would unreasonably infringe the rights of others.
Privileges in Labor and Social Law
In employment and social law, unenforceable claims may arise from the principles of legitimate expectation or equal treatment.
References and Further Information
- German Civil Code (BGB), especially §§ 762, 817, 829, 138, 1297
- Palandt, German Civil Code, current edition
- Munich Commentary on the BGB
- Bamberger/Roth, BeckOK BGB
- Staudinger, Commentary on the BGB
Summary
Unenforceable claims constitute a special category under German law: They exist legally, but cannot be enforced by judicial means. Unenforceability may be based on statute, immorality, or the specifics of the legal relationship in question. It serves to protect important social values, to exclude unlawful purposes, and to safeguard the personal sphere of the individual, and is primarily found in civil law but may also apply in other areas. Understanding the legal boundaries and functions of unenforceable claims is a fundamental part of German private law and its interpretation.
Frequently Asked Questions
What are typical cases in which claims are considered unenforceable?
Claims are considered unenforceable if they exist under substantive law but cannot be enforced in court due to procedural rules. Classic examples include friendly services, such as a promise of free transportation (favor transportation) without a legally binding contract, or public law claims that are not at the parties’ disposal. Highly personal claims, for example from family law (e.g., the right to marital cohabitation), can also be unenforceable to a certain extent, since courts cannot render enforceable decisions for reasons of privacy or public interest. Similarly, courts refuse enforceability for so-called honor rights, such as a claim to the conferment of an order or title. In all these cases, a legal bond exists, but judicial enforcement is excluded.
How does unenforceability differ from unenforceability (non-executability) of a claim?
Unenforceability concerns the possibility of asserting a claim in court at all, whereas non-executability refers to whether a claim determined by judgment can actually be enforced by state compulsion. A claim is unenforceable if procedural rules or other legal provisions exclude its enforcement in court. A claim is non-executable if a judgment is issued, but the judgment cannot be enforced by state means—for example, in the case of highly personal services. An unenforceable claim can thus not be sued for from the outset; a claim that is not executable may be sued for, but any judgment obtained cannot be enforced forcibly.
Under what circumstances is a claim considered unenforceable in civil law?
In civil law, claims are generally considered unenforceable if there is either a statutory procedural bar or if existing law intentionally restricts private assertion of certain rights. This may arise from explicit statutory stipulations (for example, in parent-child relations regarding upbringing measures, § 1631 BGB), for reasons of privacy or secrecy, or matters of legal ethics. Procedural rules also stipulate that certain applications—such as for an indefinite future benefit—are procedurally inadmissible (§ 253 para. 2 ZPO). Where interests in loyal cooperation apply, as in internal club matters or official trust relationships, the legislature may exclude enforceability in order to protect functionality or confidentiality.
What is the effect of a claim’s unenforceability on limitation periods and acknowledgment by the debtor?
The unenforceability of a claim affects limitation periods. Since a lawsuit cannot be filed, consequences such as suspension or restart of limitation due to court action are not possible. However, if an unenforceable claim is acknowledged by the debtor, this is treated as acknowledgment (§ 212 BGB), which can restart the limitation period. Such acknowledgment does not affect the (un)enforceability itself: even after acknowledgment, an unenforceable claim remains procedurally unenforceable. Moreover, acquiring a title by way of a judgment based on acknowledgment is excluded for unenforceable claims, since bringing suit is already inadmissible.
What role does the parties’ disposition play regarding the enforceability of a claim?
Party disposition refers to the degree to which parties can themselves determine whether a claim is enforceable. In the case of unenforceable claims, party disposition is precisely excluded, since significant legal interests (e.g., protection of personality, loyalty, public order) stand in the way of free disposal. Even contractual agreements aimed at conferring enforceability on an originally unenforceable claim are generally ineffective. Thus, the principle of party autonomy finds its limits with unenforceability.
Can public law claims also be unenforceable?
Unenforceable claims also exist in public law. Typically, these include actions within internal hierarchical relationships (e.g., service instructions within public employment without external legal effect) or administrative acts serving only for internal decision-making. There are also administrative acts or claims for which legal recourse is excluded or for which special procedural requirements must be observed. Furthermore, certain public-law promises of performance (such as subsidy commitments without statutory duty of cooperation) may be classified as unenforceable if the beneficiary lacks legal recourse or the benefit is subject to sovereign discretion.
What legal consequences result if a court nonetheless decides on an unenforceable claim?
If a court decides on a claim despite its unenforceability, the lawsuit is inadmissible and the proceedings will be dismissed as such. Should a judgment nonetheless be rendered, it is generally void or at least revocable due to lack of jurisdiction. A final judgment has no legal effect to the extent it is based on an inadmissible claim. In addition, enforcement measures based on such a judgment would be impermissible. Affected parties may challenge the judgment with the available remedies (appeal, revision, or, if applicable, action for nullity).
Are there ways to convert an unenforceable claim into an enforceable one?
Generally, converting unenforceability to enforceability depends on statutory requirements. In rare cases, fulfillment of certain formalities, subsequent contractual agreement, or transformation of a favor into a legally binding promise may turn an originally unenforceable claim into an enforceable one. The decisive factor here is the parties’ intent to be legally bound or the creation of a special legal basis (e.g., through legislative amendment) permitting an action. In areas where public interest determines unenforceability, conversion is generally excluded.
