Term and Definition of Public Notice (Ausgebot)
The term Ausgebot is a significant legal concept in German law and includes various types of proceedings in which a public announcement is made with official character, especially in civil procedure, enforcement, and land register law. The Ausgebot serves to secure and protect the legal positions of third parties, promotes legal certainty and transparency in legal transactions, and is closely linked to certain registration and legitimation procedures.
The Ausgebot is particularly significant in the context of debtor identification, the loss of documents (such as land charge or mortgage certificates), and in collective legal relationships (e.g., joint rights to an object). In a broader sense, the Ausgebot refers to any procedure in which unknown or not directly accessible parties are called upon by public announcement to assert their claims or rights within a specified period.
Historical Development
Origin and Development in German Law
The proceedings of Ausgebot have their origin in the historical law of enforcement and documents. In particular, the introduction of the German Civil Code (BGB) and the Code of Civil Procedure (ZPO) established essential regulations that, in part unchanged, still apply today.
Changes Through Modern Law
Changes to Ausgebot procedures often resulted from digitalization and adaptation to new means of communication and register systems. Today, the Ausgebot generally takes place through entries in the official gazette or in electronic registers, thereby ensuring wide public access and greater transparency.
Legal Foundations and Sources of Law
German Civil Code (BGB)
In the BGB, the Ausgebot is regulated in several provisions, particularly in connection with the loss of documents (§§ 879 BGB – Mortgage Ausgebot, §§ 1162 ff. BGB – Usufruct of land charges, § 1205 BGB – Pledge of movable items and rights).
Code of Civil Procedure (ZPO)
In the ZPO, procedures for public service and special declaratory proceedings are regulated, in which the Ausgebot can play a role.
Land Register Code (GBO)
The GBO regulates procedures for missing land registry documents or land register sheets and provides for the application of Ausgebot proceedings.
Supplementary Provisions
Additionally, specific regulations on the Ausgebot can be found in individual special laws, such as the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG) and the Act on Rights to Registered Ships and Shipbuilding Works.
Functions and Objectives of the Ausgebot
Essentially, the Ausgebot pursues the following objectives:
- Public Announcement: Parties involved and third parties should be protected and informed of their rights.
- Interruption of Limitation Periods: Deadlines begin to run only with the Ausgebot, which helps to preserve rights.
- Legitimation and Legal Certainty: Anyone who does not come forward or register claims after the Ausgebot period may have their rights restricted or excluded, which establishes a clear legal situation.
- Facilitation of Evidence: In cases of missing documents, a title of right can be obtained on the basis of the Ausgebot procedure (e.g., declaration of invalidity of bearer bonds).
Areas of Application
Ausgebot Procedure in Case of Loss of Documents
The Ausgebot is of particular importance when mortgage, land charge, or other certificate documents are lost (§§ 1162, 1192 BGB):
- Requirements: The holder of a lost or destroyed document may apply to have it declared void.
- Procedure: The court issues an Ausgebot, in which unknown right holders or finders are called upon to register their rights.
- Period: After the statutory Ausgebot period and in the absence of registration of competing claims, the declaration of voidness is usually granted.
Ausgebot Procedure in Land and Land Register Law
In land law, the Ausgebot is important if joint rights or encumbrances of a property are to be clarified or unknown rights excluded (e.g., in the dissolution of a co-ownership community).
Ausgebot in Insolvency and Probate Proceedings
In matters of succession (probate opening, acceptance of inheritance with unknown co-heirs) and insolvency proceedings, the Ausgebot may serve to invite unknown or unidentifiable participants to assert their claims.
Application in Maritime Law and for Bearer Bonds
The regulations concerning the Ausgebot apply accordingly to rights to registered ships or shipbuilding works, as well as to securities (bearer bonds), if these are lost.
Procedural Implementation
Submission of Application
The application to carry out an Ausgebot procedure must be addressed to the competent local court. It is necessary to state the facts, the rights, and to demonstrate the procedural interest.
Content and Form of the Ausgebot
The Ausgebot includes:
- Designation of the lost rights or documents
- Request to unknown entitled persons to register rights with the court within a certain period
- Warning that certain legal consequences (exclusion, declaration of invalidity) will occur after the period has expired
The Ausgebot is made public, usually through publication in the official gazette or electronic official journal.
Process and Legal Consequences
After the period has expired, the court decides whether registrations have been received and whether they are justified. If registrations are missing or unfounded, the court may declare the excluded rights extinguished or a document null and void. This decision is effective against everyone.
Legal Remedies
Judicial decisions in the Ausgebot procedure are generally subject to complaint or application rights pursuant to the respective legal provisions.
Significance of the Ausgebot for Legal Transactions
The Ausgebot procedure is an indispensable instrument for legal clarity and certainty in German civil and enforcement law. It ensures an effective balance between the interests of the right holder and the protection of third parties who, in individual cases, are not known or reachable.
References
- Palandt, German Civil Code, Commentary, latest edition
- NK-BGB, Nomos Commentary on the BGB
- AnwK-BGB, Lawyer Commentary BGB, latest edition
- Musielak/Voit, ZPO, Commentary, latest edition (on civil procedural issues)
- Reetz, Land Register Law, latest edition
Note: This article provides a generally understandable explanation of the term ‘Ausgebot’ in German law and cannot replace the applicable legal situation for specialized individual questions. For use in individual cases, the relevant current legal literature and official legal texts should be consulted.
Frequently Asked Questions
What legal requirements must be met for a valid Ausgebot?
For a valid Ausgebot, several legal requirements must be fulfilled. Essentially, the Ausgebot must be ordered by the competent authority or the court, provided this is prescribed by law, for example in civil proceedings pursuant to §§ 946 ff. ZPO or in connection with real estate matters under § 917 BGB. The Ausgebot must comply with the statutory formal requirements, especially with regard to public announcement and the content specifications, such as the exact designation of the subject over which rights can be asserted (e.g. a property, a claim, or movable things). Indicating the period within which entitled persons must register their claims is mandatory. In addition, it must be ensured that the announcement is made according to the relevant publication requirements (e.g. in the Federal Gazette or local official gazette) so that potential claimants are informed as comprehensively as possible. If form and time period requirements are not met, the Ausgebot is invalid and has no legal effects.
What legal effects does the Ausgebot have?
The Ausgebot means that all persons claiming rights to the item specified in the Ausgebot are obliged to register their claims within the set period. After this deadline, those who have not registered usually lose their rights or must assert them further in the proceedings, which may entail significant legal disadvantages (so-called exclusion of consideration for later registrants, § 949 ZPO). The procedure serves, in particular, legal certainty because the current right holder or, for example, a property acquirer, is granted judicial or official confirmation as to which claims he might have to defend against. Legal effects occur only after the effective and proper expiry of the Ausgebot period.
How is an Ausgebot legally announced correctly?
The announcement of an Ausgebot must be made in accordance with certain statutory provisions and within prescribed deadlines. It depends especially on the type and value of the affected right as well as on special statutory provisions. Typically, the announcement appears in the justice portal of the federal government and the states, in the Federal Gazette and/or in the local official gazette. In some cases, publication at certain notice boards of the court is also required. The announcement text must clearly state who is being called to register, what the Ausgebot relates to, the period set for registration, and what legal consequences ensue from missing the deadline. Adhering to these requirements is mandatory since the entire Ausgebot procedure could otherwise be void.
What is the significance of the Ausgebot period and how is it determined?
The Ausgebot period sets the timeframe within which eligible persons must register their rights. Legally, the period is of substantial significance because after the period expires, subsequent registrations may be excluded. The period is usually determined by statutory provisions, for example at least six weeks for a general Ausgebot under § 946 ZPO. In particular cases or special types of proceedings, the period may differ. The authority or court must specify the period clearly in its Ausgebot order and include it in the publication. Besides the minimum duration, the period may also never be so short that affected groups are excluded unexpectedly; this would be legally questionable.
What legal remedies are available if rights are infringed by the Ausgebot?
If someone’s rights are infringed by an Ausgebot—such as if the Ausgebot was ordered unjustly or erroneously, relevant persons were not properly notified, or deadlines are incorrect—there are in principle legal remedies such as immediate complaint under §§ 567 ff. ZPO. The so-called third-party objection action may also be permissible if a person’s right is negated or impaired through the conduct of the Ausgebot. It should be noted that there are specific deadlines and formal requirements for lodging such remedies. In serious cases, a petition for reinstatement into the previous position upon unintentional missing of the deadline may also be submitted (§§ 233 ff. ZPO).
What burden of proof exists in the Ausgebot procedure?
In legal Ausgebot procedures, the person registering a claim bears the full burden of proof for the accuracy and existence of his or her right. This applies both to substantive requirements (for example, ownership or claim holding) and to the timely and proper registration. Submitted evidence (e.g., documents, witness statements) is reviewed by the competent authority or court for plausibility before a decision on the registration is made. If the claimant fails to substantiate the claim, the registration is regularly rejected.
What are the consequences of the Ausgebot procedure for unknown creditors or right holders?
The Ausgebot procedure is specifically designed to include unknown or missing holders of rights to the item being offered. The procedure is intended to make it possible to exclude the rights of such persons by public announcement if they do not come forward within the Ausgebot period. For such unknown holders, the proper conduct of an Ausgebot usually means their rights expire after the period or can no longer be asserted. This provides legal certainty for the applicant (e.g., an owner or acquirer) and significantly reduces the risk of later claims. The procedure thus forms an important component of the system of public demonstration and participation of unknown third parties in German law.
