Concept and definition of the claim for restoration
Die Claim for restoration is a legal remedy under German civil procedural law by which the claimant demands the restoration of a specific legal or factual condition that was previously impaired by the defendant’s act or omission. It is one of the types of action available to obtain primary legal protection, particularly in connection with claims arising from possession, ownership, or other rights aiming at the restoration of a previously existing situation.
Legal classification of the claim for restoration
Systematics in German law
The claim for restoration can be based on various procedural and substantive legal grounds, for example:
- Section 1004 BGB (Claim for removal and injunction)
- Section 862 BGB (Protection of possession)
- Section 985 BGB (Owner’s claim for surrender)
- Section 812 BGB (Claim for restitution due to unjust enrichment)
This form of action seeks a positive act by the defendant which leads to restoration of the previous condition and thus differs, for instance, from an action for injunction, which is aimed at the future omission of a disturbance.
Claim for restoration as an action for performance
In civil procedure, the claim for restoration is typically classified as an action for performance, as it is directed at an act (restoration of an object, removal of a disruptive condition, reversal of a measure). The claim must precisely describe the condition to be achieved in the claim application, as this is the only way to ensure the enforceability of the judgment (§ 253 para. 2 no. 2 ZPO).
Distinction from other types of action
The claim for restoration is to be distinguished from:
- Action for injunction: This does not require an active act, but the omission of an unlawful act.
- Declaratory action: It is only aimed at the declaration of a legal relationship, not at the actual restoration of a condition.
- Action for surrender: Although there is overlap in areas of application, an action for surrender in the narrower sense is only aimed at the delivery of a specific object, whereas a claim for restoration typically seeks the removal of a condition and, if necessary, substitute restoration.
Requirements and contents of the claim for restoration
Substantive legal grounds for claims
A successful claim for restoration assumes the existence of a legal or factual right to restoration. This can particularly arise from:
- Ownership rights: Removal of impairments pursuant to § 1004 BGB, provided there is no obligation to tolerate.
- Possessory rights: Restoration of the original possession according to § 862 BGB.
- Contract law: Reversal of contracts or retraction of services upon rescission pursuant to §§ 346 et seq. BGB.
Substantive requirements for the statement of claim
The claim application must specify the condition to be restored with sufficient precision so that the defendant knows what is being demanded of them and to enable subsequent enforcement (§ 253 para. 2 no. 2 ZPO). For this, the description of the condition and the necessary acts should be as concrete as possible.
Example:
“The defendant is ordered to completely remove the wall they constructed on the plaintiff’s property … and to restore the previous condition of the property boundary.”
Definiteness and enforceability
The court examines the definiteness of the claim application and the feasibility of the demanded act. If the application is too vague, the claim risks being dismissed as inadmissible. The claim for restoration must be enforceable, that is, the expected condition must be capable of being brought about through enforcement proceedings.
Procedure and enforcement of the claim for restoration
Course of proceedings
The court proceedings correspond to those of general actions for performance. The claimant bears the burden of alleging and proving the claim for restoration. After a successful judgment, the claimant may proceed to enforcement if the defendant does not comply voluntarily.
Special case constellations
Claims for restoration play a role in numerous areas, for example:
- Neighborhood disputes (e.g., unlawful structural changes)
- Disturbances in tenancy law (e.g., removal of unlawful fixtures)
- Violations of possessory and ownership rights
- Measures under public law (e.g., in municipal law for reversal of illegal construction conditions)
Enforcement of the judgment
The court judgment is regularly issued in the form of a performance judgment. Enforcement follows the rules of §§ 887 et seq. ZPO, particularly by substitute performance if the defendant does not comply with the judgment. Substitute performance allows the claimant to have the restoration carried out by third parties at the defendant’s expense.
Special considerations and limits to the claim for restoration
Impossibility and disproportionality
A claim for restoration can be excluded if restoration is objectively impossible or if the effort required is disproportionate to the legitimate interest of the entitled party (§ 275 para. 1 and 2 BGB). Furthermore, special duties of care or obligations to consider can limit restoration.
Relationship to damages
If the defendant cannot perform the restoration or it becomes impossible, there is often a claim for damages in the form of so-called restoration damages (§§ 249 et seq. BGB). The intention is to achieve the same result economically by payment of a sum of money.
Suspension and limitation
Claims for restoration are subject to the general statutory provisions on limitation. The regular limitation period is three years, but it may differ depending on the relevant legal relationship (e.g., ownership, possession, contract).
Summary
Die Claim for restoration is an important element of German civil procedural law that allows the claimant to demand the restoration of a condition impaired by a disturbance or legal infringement. Its application requires a precise understanding of the legal basis of the claim, the requirements for the claim application, and the procedural possibilities for enforcement. As an effective procedural instrument, it enables the reversal of illegal interventions and provides effective primary legal protection in civil law.
Frequently Asked Questions
When is it permissible to bring a claim for restoration under German civil law?
A claim for restoration is always permissible when the claimant demands from the defendant the performance of a specific act aimed at the restoration of a particular condition. This is especially relevant in tenancy law (§ 535 BGB), contract law for work and services (§ 631 BGB), as well as in neighbor law, if there is an obligation between the parties to create or restore a physical or legal condition. Before filing a claim, it must be regularly examined whether a statutory or contractual claim to the desired restoration exists and whether the defendant has not fulfilled this obligation, either at all or properly. It should also be noted that the claim will only be successful if the demanded act is clear and specific; vague or impossible performances cannot be the subject of a claim for restoration (§ 253 para. 2 no. 2 ZPO).
What are the requirements of the Code of Civil Procedure regarding the definiteness of the claim application in a claim for restoration?
According to § 253 para. 2 no. 2 ZPO, the claim application must clearly and unambiguously state what is being demanded from the defendant. In the case of a claim for restoration, this means that the condition to be restored must be described as precisely as possible. This applies to the type of object to be restored as well as, if applicable, its characteristics, location, or scope. For instance, it is insufficient to simply claim ‘restoration of the condition as per the contract’. Instead, the application should require specific acts, e.g., ‘The defendant is ordered to modify the garden gate located in the courtyard to a width of 1.20 meters so that it can be opened fully and closes properly.’
Is there a requirement to set a deadline before bringing a claim for restoration?
In many cases, setting a deadline is required before bringing a claim for restoration. This results, for example, from the general law relating to performance disruptions (§§ 281, 286 BGB) and regularly applies to contractual claims. If the claim for restoration arises from contract or law and becomes due only after a warning or the setting of a deadline, the claimant must substantiate this or make up for it in the proceedings. This can be dispensed with if special circumstances apply, such as in the case of a serious and final refusal of performance by the defendant.
What other types of action are possible if restoration has become impossible?
If restoration has become impossible for objective or subjective reasons, an action for performance for damages due to non-performance (§ 280 para. 1, 3, § 283 BGB) can generally be brought instead of the claim for restoration. In some cases, substitute performance pursuant to § 887 ZPO can be requested if the restoration can be performed by a third party, or an action for payment if the restoration is to be compensated in money. A declaratory action under § 256 ZPO is also possible if the claimant wants it determined that the right to restoration no longer exists or has been converted into another claim.
Can the court order restoration by way of enforcement proceedings?
Yes, the enforcement procedure differs depending on the type of performance demanded. If restoration can also be provided by third parties (‘performable act’), § 887 ZPO provides that, upon application, the creditor may be authorized to have the act performed at the debtor’s expense, either by themselves or by a third party. For non-performable acts that can only be done personally by the debtor, enforcement is carried out by means of a coercive fine or coercive detention pursuant to § 888 ZPO.
What are the cost risks associated with a claim for restoration?
The amount of court costs and attorneys’ fees depends on the value in dispute, which corresponds to the economic interest in the requested restoration. There are also additional expenses for expert opinions if the restoration is contested or technically demanding. If the claimant is unsuccessful, he or she typically bears all costs unless the court orders a different allocation of costs (§ 91 et seq. ZPO). If partially successful, the costs are apportioned accordingly.
What role does an expert opinion play in proceedings concerning claims for restoration?
Since restoration often involves technical, structural, or other specialist elements, the court will regularly appoint an expert in cases of doubt or if the parties are in dispute (§ 404 ZPO). The expert is to clarify, in particular, which condition is to be restored, whether it is possible and reasonable, and what specific measures are necessary. The opinion serves as a key means of evidence for the court in assessing the merits of the claim for restoration.
