Legal term: Disposal of the main issue
Die Disposal of the main issue is an important term in German civil procedural law, as well as in other procedural codes, describing a state in which the original objective of a legal proceeding subsequently becomes moot. This regularly occurs due to events outside of the proceedings that resolve the matter in dispute before a final and binding judgment on the main issue is rendered. The determination of this disposal and its procedural consequences are of considerable importance for the decision on costs and for the legal positions of the parties.
Definition and statutory basis
The disposal of the main issue is not explicitly regulated in the principal codes of procedure – such as the Code of Civil Procedure (ZPO), the Administrative Court Procedure Code (VwGO), the Social Court Act (SGG), or the Fiscal Court Ordinance (FGO) – but it has been thoroughly developed in case law and legal scholarship. The most important application is found in proceedings under Section 91a ZPO (decision on costs following mutual declaration of resolution). Comparable provisions exist in other procedural codes.
Civil Procedure Law (§ 91a ZPO)
If the main issue is resolved during the proceedings, the parties may, pursuant to Section 91a (1) ZPO, jointly declare the matter resolved. The court then only decides by order on the costs of the proceedings at its reasonable discretion, in particular taking into consideration the circumstances and the state of the dispute to date.
Administrative, Social, and Fiscal Court Proceedings
In administrative disputes, Section 161 (2) VwGO also provides for a cost decision in case of a mutual declaration of resolution. The same applies to the Social Court Act (§ 102 (2) SGG) and the Fiscal Court Ordinance (§ 138 FGO).
Requirements for the disposal of the main issue
Disposal of the main issue requires that the claim asserted by the action or the legal protection sought becomes moot due to circumstances occurring outside the proceedings, such as satisfaction, lapse of time, change in the factual or legal position, or other facts that eliminate the original need for legal protection.
Examples of reasons for disposal
- Payment of the claimed monetary debt by the defendant
- Fulfillment of the asserted claim (e.g., surrender, injunction, tolerance)
- Withdrawal of an administrative act (e.g., withdrawal or revocation of a decision)
- Death of a party, resulting in the claim becoming void
- Lapse of time that extinguishes the right to sue
- Change of law making the claim moot
Not a case of disposal
No disposal is present if the action was inadmissible or unfounded from the outset. Subsequent disposal only affects claims or objectives for legal protection that were originally admissible, well-founded, or at least not precluded.
Procedural consequences of disposal of the main issue
Declaration of resolution
As a rule, the parties declare before the court that the main issue is resolved—either unilaterally or mutually. While a mutual declaration includes both parties and necessarily leads to a cost decision under Section 91a ZPO, a unilateral declaration gives rise to a special procedural process.
Procedure in the event of a unilateral declaration
If only one party declares the matter resolved—such as the claimant, because the defendant has recognized and fulfilled the claim, but the defendant wishes to contest the costs—the court determines whether the main issue has indeed been resolved. The proceedings then continue as a declaratory procedure aiming to decide who must bear the costs of the proceedings.
Decision on costs
Allocation of the legal costs after disposal of the main issue, according to case law, is based on the so-called ‘hypothetical outcome of the lawsuit.’ It is determined how the legal dispute would have been decided if the event causing its resolution had not occurred. If the action was originally admissible and well-founded, the defendant is generally required to bear the costs; if the claim was inadmissible or unfounded, the plaintiff must bear the costs.
Binding effect
The decision on the disposal of the main issue relates exclusively to the costs and does not have substantive res judicata in respect of the matter in dispute. The event causing the disposal results in the main issue no longer being decided on its merits.
Difference to disposal of the main issue in other proceedings
In administrative proceedings, social court proceedings, and proceedings before fiscal courts, comparable rules on the procedural handling of disposal of the main issue and subsequent decisions on costs are provided for. The substantive structure essentially corresponds to the civil procedure, although slight differences in procedure and substantive requirements may exist depending on the code.
Legal interest and substantive res judicata
With the disposal of the main issue, the plaintiff’s interest in legal protection ceases. The court then only decides on the ancillary procedural matters, primarily the allocation of costs. No decision on the merits by judgment is rendered with respect to the original application. There is also no substantive res judicata with respect to the subject of the action.
Practical relevance and significance
The procedural construct of the disposal of the main issue is of considerable practical importance, especially in situations in which the defendant fulfills the claim during the ongoing proceedings or the legal position changes in favor of a party during the process. To avoid unnecessary decisions ‘on the merits’ and in order to allocate costs appropriately, the instrument of the declaration of disposal and the subsequent decision on costs is essential.
Literature and further information
- Thomas/Putzo, ZPO, commentary on § 91a ZPO
- Zöller, ZPO, commentary on § 91a ZPO
- Kopp/Schenke, VwGO, commentary on § 161 VwGO
Conclusion:
Die Disposal of the main issue is a central procedural institution in German procedural law that enables a flexible and appropriate handling of resolved disputes and a suitable allocation of procedural costs. Its purpose is to conserve judicial resources while still ensuring a conclusive determination of the cost consequences, independently of the substantive claim.
Frequently Asked Questions
What are the procedural consequences of the disposal of the main issue?
The disposal of the main issue in civil proceedings results in the court no longer deciding on the original matter in dispute by way of a judgment on the merits, but only deciding on the costs pursuant to Section 91a ZPO. The prerequisite is that the originally pending claim (e.g., performance, injunction) becomes moot after the case was filed, for example, through fulfillment, acknowledgment, lapse of time, or cessation of grievance. The court then only examines whether the case has been resolved on the merits; if it answers in the affirmative, there is no further decision on the merits, only on the costs, with a summary review of the prospects of success. The court is, however, not generally bound by the parties’ mutual declaration of disposal, but may, if necessary, examine ex officio whether disposal has indeed occurred.
How does a party declare the disposal of the main issue?
The declaration of disposal can be made either unilaterally or mutually. The unilateral declaration is usually made when only one party considers the dispute to have been resolved (by analogy with Section 91a ZPO). Here, the party expressly states that they consider the dispute resolved, typically combined with a request to impose costs on the opponent. The mutual declaration is given by both parties, often in pleadings or on the record at the oral hearing. There is, in principle, no particular form prescribed for this; it need only be clear to the court which party is making which declaration. In both cases, proceedings on the main issue cease; the court decides only on costs.
What is the significance of a unilateral declaration of disposal in litigation?
If a unilateral declaration of disposal is made by a party—usually the plaintiff—it is treated as a subsequent amendment of claim into a so-called ‘action for declaration of resolution.’ In the cost proceedings under Section 91a ZPO, the court examines whether the unilaterally declared disposal was justified; that is, whether the claim would originally have been admissible and well-founded, and whether, after the initiation of proceedings, an event occurred rendering the original objective moot. If that is the case, the court makes a cost decision at its reasonable discretion, whereby usually the losing party in the absence of disposal bears the costs. If the court finds the express application for disposal unfounded, it will continue the main proceedings or dismiss the action.
What legal remedies are available against a cost decision following disposal of the main issue?
An immediate complaint (Section 567 ZPO) is generally admissible against a cost decision issued in the course of disposal according to Section 91a ZPO, provided the value of the object of complaint exceeds 200 euros. This is because the cost decision is not a final judgment in the sense of the ZPO, but a separate order. The immediate complaint must be filed within two weeks, starting from service of the order. If the declaration of disposal is accompanied by a partial settlement or the order includes an enforceable element, this may lead to deviations regarding the legal remedies in individual cases.
What happens if a party objects to the declaration of disposal?
If the opposing party objects to a unilateral declaration of disposal, the court conducts a summary examination, as provided by Section 91a ZPO, to determine whether the dispute has indeed been resolved on the merits and which party must bear the costs of the proceedings. If the court concludes that the matter has not been resolved, it must continue with the proceedings and, if necessary, decide on the original claim on the merits. The court may also take evidence in the course of this review; however, an extensive taking of evidence is generally avoided and limited to what is necessary for the decision on costs.
What are the differences to mutual declarations of disposal?
If both parties make a mutual declaration of disposal, this constitutes an agreement to the cessation of the legal interest. In this case, the court decides on costs at its reasonable discretion in accordance with Section 91a (1) sentence 1 ZPO; a comprehensive review of the admissibility and merits of the original action is dispensed with unless there are indications of an obviously abusive declaration. A mutual declaration of disposal generally excludes the need for further investigation of facts and a decision on the main issue.
Can legal proceedings be resumed after a declaration of disposal?
If the proceedings are concluded by a final and binding decision on costs pursuant to Section 91a ZPO, the original request for legal protection is procedurally resolved; a new action on the same subject is generally excluded unless new facts or legal changes causing a new grievance have arisen. A declaration of disposal does not establish substantive res judicata on the main issue, but the interest in declaratory judgment falls away, so that further claims on the same matter are inadmissible unless exceptional circumstances arise.
