Definition and Fundamentals of the Aufgebotseinrede
Die Aufgebotseinrede is a term from German civil procedure law as well as enforcement law. It refers to the right of a debtor to object to a creditor that their claim may only be enforced by means of a judicial summons procedure (Aufgebotsverfahren). The plea acts as a procedural defense which suspends satisfaction of the creditor until completion of the relevant summons procedure. The Aufgebotseinrede is particularly relevant to claims that a debtor owes to an indeterminate group of entitled parties, for example, claims arising from bearer or order securities, or in the context of estate administration.
Legal Classification of the Aufgebotseinrede
Historical Development
The roots of the Aufgebotseinrede reach back to the 19th century and are closely tied to the development of modern enforcement procedures and the protection of debtors from multiple claims. In the course of legal codification in the 19th and 20th centuries, the plea was incorporated into German civil law by statutory regulations.
Legal Foundations
The Aufgebotseinrede is found in several statutes of German law:
- German Civil Code (BGB)
– It is of particular importance in connection with § 372 BGB (“Deposit with several entitled parties”). If several persons may be considered as creditors in respect of a claim and it is unclear to whom the claim belongs, the debtor may refuse to perform until it is determined, through a judicial summons procedure, who is actually entitled to the claim.
- Act on the Summons Procedure (AufgebG)
– The Aufgebotsgesetz regulates the procedure for excluding unknown or uncertain rights to certain objects or claims.
- Code of Civil Procedure (ZPO)
– In § 1179a para. 2 sentence 2 BGB in connection with references in the ZPO, similar provisions apply regarding mortgages.
The Aufgebotseinrede is also relevant in connection with §§ 987 et seq. ZPO (enforcement procedures) and other special statutory regulations.
Function and Purpose of the Aufgebotseinrede
Protection of the Debtor
The main purpose of the Aufgebotseinrede is to protect the debtor from the risk of dual liability where the creditor’s entitlement is uncertain. This situation occurs when multiple parties make claims to a right or the ownership is in doubt. By raising the plea, the debtor can demand that the creditor first prove their entitlement by way of a judicial summons procedure.
Requirements for Assertion
The Aufgebotseinrede can only be raised under certain conditions:
- Uncertainty regarding the creditor’s status
– It must be objectively doubtful who is actually entitled to the claim.
- Legal basis for the summons procedure
– According to law, the asserted claim must be able to be clarified by means of a summons procedure.
- Invocation of the Plea in Court
– The debtor must expressly invoke the right to raise the Aufgebotseinrede in the ongoing process.
Legal Consequences of the Plea
As long as the summons procedure has not been conducted or concluded, the debtor’s right to refuse performance continues. If the creditor wishes to insist on performance, they are obliged to initiate the procedure. Only after completion of the proceedings and, if necessary, after a final and binding decision can the creditor be satisfied.
Areas of Application of the Aufgebotseinrede
Bill of Exchange and Cheque Law
In the law of bills of exchange and cheques, the debtor can assert the Aufgebotseinrede, for example, if several persons appear as holders or there are doubts regarding the holder’s status. In these cases, the law expressly provides for the possibility to withhold performance until the decision in the summons procedure is made.
Claims from Bearer and Order Securities
With bearer instruments such as bonds or savings books, it is common for the certificate to be lost and the legitimate holder not to be determined. In this context, the Aufgebotseinrede allows the debtor to refuse performance until presentation of the court order from the summons procedure.
Estate Administration and Succession
In connection with estate administration, the debtor may raise the Aufgebotseinrede against the claims of alleged heirs in order to prevent multiple heirs from accessing the same estate asset.
Mortgages and Real Property Rights
Land registry law provides corresponding regulations for cases in which the entitled party to a land charge or mortgage is not established (for example, where the mortgage deed has been lost).
Procedural Issues and Procedural Significance
Procedural Assertion
The Aufgebotseinrede is a procedural plea. It must be expressly asserted within a judicial proceeding. If this does not occur, it cannot be raised retrospectively. The plea usually does not interrupt the proceedings, but merely suspends the debtor’s obligation to perform until the decision in the summons procedure.
Effects on Enforcement
If the Aufgebotseinrede is raised in enforcement proceedings, the debtor may be able to avert enforcement for as long as the judicial summons procedure is ongoing.
Distinction from Other Pleas and Legal Instruments
Difference from the Deposit Plea
While the deposit plea gives the debtor the right to deposit the owed performance with the court in order to be released from their obligation, the Aufgebotseinrede merely protects the debtor from having to perform to an apparent non-entitled party.
Distinction from Other Rights to Refuse Performance
The Aufgebotseinrede has a specific scope of application in the summons procedure. Classical rights to refuse performance, such as the defense of an unfulfilled contract (§ 320 BGB) or rights of retention (§ 273 BGB), differ in terms of their requirements and legal consequences.
Summary
The Aufgebotseinrede constitutes an important defense for the debtor, particularly applicable in situations of legal uncertainty regarding creditor status. It serves legal certainty and protects the debtor against multiple claims. The plea is closely linked to the judicial summons procedure, may be asserted in various areas of law, and carries far-reaching procedural significance. Knowledge of the requirements and legal consequences of the Aufgebotseinrede is essential for the practical enforcement and defense of claims where creditor status is unsecured.
Frequently Asked Questions
How and in which judicial proceedings can the Aufgebotseinrede be asserted?
The Aufgebotseinrede can generally be raised in all court proceedings in which claims are asserted from bearer or order instruments (e.g. bills of exchange, cheques, savings books) whose loss or destruction is alleged and for which the law permits the summons procedure. The plea is especially relevant in ordinary civil proceedings, particularly in the assertion of claims arising from lost or destroyed securities. It may be raised in both written and oral proceedings. Assertion takes place, at the latest, during the lawsuit in the form of a defense by the defendant, for example, in the statement of defense or at the oral hearing. It is important that the plea is expressly raised; mere disputing of the claim is usually insufficient.
What are the legal consequences of successfully raising the Aufgebotseinrede in civil proceedings?
If the Aufgebotseinrede is successfully asserted, this means that the plaintiff’s claim from the relevant instrument is opposed by the plea as long as the statutory summons procedure has not been conducted and an exclusion judgment (amortisation certificate) is not presented. The court may not award the plaintiff the claimed entitlement from the instrument. In practice, this means the plaintiff cannot win the case unless they can show that the instrument has been declared void. The lawsuit is generally dismissed as currently unfounded (not as finally unfounded), as the plaintiff may bring a further action after proper amortisation.
Who is entitled to assert the Aufgebotseinrede, and who bears the burden of proof?
In principle, the debtor under the relevant instrument, i.e. especially the issuer or drawee, such as the cheque or bill obligor, is entitled to assert the Aufgebotseinrede. Other persons with a legal interest may also invoke the plea, provided they are claimed upon for surrender or performance. The burden of proof for the loss, destruction, or disappearance of the instrument lies, as a rule, with the party asserting rights under it (the plaintiff). The respondent need only assert the objection of non-possession; the proof that there is no abusive assertion is, however, a matter for the claimant.
Do creditors lose their claims permanently as a result of the Aufgebotseinrede?
No, the creditor’s claims under the instrument are not permanently extinguished by raising the Aufgebotseinrede. The plea is merely suspensive: the claim cannot be enforced as long as the instrument exists and until it is declared void. After successful completion of the summons procedure and submission of the exclusion judgment, the claim is revived and can be asserted again in court. Unless the claim has expired in the meantime through limitation or other legal obstacles, the substantive claim remains intact.
What formal requirements must be met to raise the Aufgebotseinrede?
The law does not stipulate any special formal requirements for asserting the Aufgebotseinrede—there is no need for it to be expressly referred to as the ‘Aufgebotseinrede;’ it may be raised in substance and meaning. What is decisive is that it is clear to the court that the assertion of a claim under an instrument is contested with the reference that the opponent lacks the instrument and that a summons procedure is required. Nevertheless, it is recommended to raise the plea expressly and in detail in the written pleadings or during the hearing to avoid disputes over its assertion.
Is the Aufgebotseinrede also applicable to electronic securities or in purely digital form?
The classical Aufgebotseinrede refers to securities in documentary form, which can be lost or destroyed. In the context of electronic securities or digital bonds, as made possible under the Electronic Securities Act (eWpG), applicability of the Aufgebotseinrede is currently limited or contentious since a loss of the physical certificate is no longer possible. The relevant special statutes usually contain their own procedures for dealing with errors, losses, or unauthorized deletions, so the classical Aufgebotseinrede either does not apply or plays at best a limited role here. Under the current legal situation, exclusion or amortisation of electronic securities is carried out using the designated digital procedures.
Can the assertion of the Aufgebotseinrede be precluded or forfeited?
As a rule, the Aufgebotseinrede is a so-called perpetual defense, which may be claimed at any stage of the proceedings—even at the appellate or revision stage—as long as there has not yet been a final decision on the claim. A preclusion, i.e. exclusion due to late assertion, generally does not occur. Only in exceptional cases may it be excluded according to the general rules of forfeiture, for example, if the debtor has encouraged the claimant in bad faith to rely on the plea being waived. Such situations are rare and require careful examination of the individual case.
