Concept and Significance of Suspensive Defenses
Definition
Suspensive defenses are legal means of defense under German civil law with which the debtor can temporarily prevent the enforceability of a claim. While the creditor does possess a due claim, its enforcement is temporarily hindered. The claim continues to exist but initially cannot be enforced in court. If the defense is lifted or its basis ceases to exist, the creditor is once again entitled to enforce the claim.
Classification within the Legal System
Suspensive defenses, like resolutive defenses, belong to the so-called defenses in the broader sense. They differ from objections, as the latter concern the creation or existence of a claim, whereas defenses concern the enforceability, i.e., the ability to bring an action on an already established claim. In contrast to resolutive defenses, which permanently destroy the claim, suspensive defenses only temporarily impede the assertion of the claim.
Regulatory Structure and Legal Foundations
Statutory Anchoring
The most important legal bases for suspensive defenses include, in particular, the following provisions of the German Civil Code (BGB):
- Section 273 BGB (Right of Retention)
- Section 320 BGB (Defense of Unperformed Contract)
- Section 438 para. 4, Section 634a para. 4 BGB (Defenses During the Limitation Period)
- Other specific defenses such as Section 771 ZPO (Third Party Opposition Action) in civil procedure law
Many unwritten general and special types of defenses are also recognized, provided that the underlying legal relationship so requires.
Distinction between Defenses
The key distinction is made between suspensive and resolutive defenses. While suspensive defenses result in temporary hindrance of claim enforcement, resolutive defenses lead to final frustration of the claim (for example, defense of limitation under Section 214 BGB).
Essential Types of Suspensive Defenses
Right of Retention (Section 273 BGB)
The right of retention under Section 273 BGB is the classic embodiment of a suspensive defense. The debtor can refuse to perform as long as the creditor does not fulfill a corresponding obligation. Typical cases arise in the context of reciprocal contracts, such as when a contractor may demand acceptance of the work as long as the customer withholds the agreed remuneration.
Defense of Unperformed Contract (Section 320 BGB)
Also of particular importance is the defense of unperformed contract according to Section 320 BGB. It allows a contracting party to withhold its performance as long as the other party does not provide the owed counter-performance. Unlike the right of retention, this defense applies exclusively to synallagmatic contracts, meaning those in which performance and counter-performance are mutually dependent.
Right of Retention in Lease and Tenancy Agreements
In certain continuous obligations, such as in tenancy or lease law, there are specific rules regarding the right of retention (e.g., Section 320 BGB in conjunction with Section 556b para. 2 BGB for leases). The tenant, for example, may withhold rent payments as long as there are defects in the rented property and the landlord has not remedied these defects despite being notified.
Effects of Suspensive Defenses
Temporary Hindrance
The effect of the suspensive defense is that it temporarily excludes the enforceability and execution of the claim. The claim, so to speak, is ‘dormant’ in terms of its enforceability. Once the reason for the defense lapses, the creditor may demand performance once again.
No Final Extinction of the Claim
It is essential that the suspensive defense does not destroy the claim, but merely delays its enforceability in court. The debtor is only obliged to perform once the defense no longer exists or has been waived.
Raising the Defense
The defense must be asserted by the debtor (‘defense must be raised’). It does not take effect automatically but requires an explicit or at least implicit assertion, either in court proceedings or out of court.
Limits and Exclusion of the Defense
Contractual and Statutory Exclusion
The exclusion of the defense can occur by law or agreement between the parties. Legally, it is permissible to waive defenses or limit them in contracts; however, this is regularly restricted in practice by the principle of good faith (§ 242 BGB) due to possible disadvantages to a contractual party.
No Retroactive Effect
Asserting a suspensive defense always takes effect ex nunc (from now on), not retroactively. If a claim was already fulfilled before the defense was raised, the defense cannot be subsequently asserted.
Distinction from Resolutive Defenses
Legal Effect
Unlike suspensive defenses, resolutive defenses permanently dissolve the legal relationship. Examples include the defense of limitation (Section 214 BGB), defense of prior action (Section 771 BGB), as well as the defense of laesio enormis. The distinction is important for the legal consequences, particularly with regard to the creditor’s satisfaction and potential restitution claims.
Significance in Legal Practice
Protection and Safeguard Function
Suspensive defenses serve to protect the debtor from premature or unjustified claims. They provide the debtor with a legally secured position until the creditor, for their part, fulfills certain conditions.
Importance in Civil Proceedings
In legal proceedings, suspensive defenses must be actively raised as so-called ‘procedural means of defense.’ They are subject to the rules on preclusion (exclusion of belated submissions) and can be decisive within the examination of the claim.
Overview of Important Cases and Special Features
Application to International Obligations
In private international law, suspensive defenses may also gain significance across borders, particularly if German law is applicable due to a choice of law.
Special Features in Commercial Law
In commercial law, certain purchase and delivery contracts may contain different arrangements or statutory defenses may be extended or modified, for example with trade clauses such as ‘concurrent performance’ (Zug um Zug) or in connection with terms of payment and delivery.
Summary
Suspensive defenses are a key tool of German civil law for temporarily warding off the enforceability of claims. Their legal structure and effect are regulated by numerous statutory provisions and serve in particular to balance the interests of creditor and debtor. Their distinguishing feature is that they impede judicial enforcement of claims without permanently destroying them. The assertion and proper handling of suspensive defenses are of considerable importance for both the enforcement and defense of claims in legal practice.
Frequently Asked Questions
When can a suspensive defense be asserted in civil law?
A suspensive defense can always be asserted in civil law whenever the party against whom the claim is made (the debtor) is entitled by law to refuse performance until a certain condition has been met or an advance performance has been rendered by the claimant. Typical cases are Sections 273 and 320 BGB: Under Section 273 BGB, the debtor can refuse their own performance as long as they have a due counterclaim against the creditor which is legally connected with the claim (right of retention). Section 320 BGB allows the debtor in a reciprocal contract to withhold their own performance until the counter-performance is effected (defense of unperformed contract). No specific form is generally required for asserting these defenses, but they must be raised at the latest during the proceedings (cf. Section 296 ZPO), otherwise they may be precluded. The defense has a ‘suspensive’ effect, meaning the claim continues to exist in principle but is temporarily unenforceable.
How does a suspensive defense differ from a permanent defense?
In contrast to permanent defenses, which permanently prevent or exclude the existence of a claim (e.g., defense of limitation under Section 214 BGB, defense of nullity), a suspensive defense only causes a temporary suspension of enforceability. This means the claim still exists and, once the underlying factor ceases to exist (e.g., payment of counter-performance), it can be enforced. Therefore, the assertion of a suspensive right does not result in final dismissal of the suit but merely in its dismissal as ‘currently unfounded.’ If the defense is no longer asserted during proceedings, the court may rule again on the merits of the case.
What is the significance of suspensive defenses in court proceedings?
In court proceedings (especially in civil litigation), suspensive defenses are so-called ‘procedural defenses’ that must be raised as a means of defense by the defendant. They have the effect that a claim may exist in substance, but cannot be enforced or, for the time being, is not enforceable. The court therefore examines not only whether the claim itself exists but also whether procedural or substantive defenses oppose it. If suspensive defenses are successfully raised, proceedings usually end with a finding that the claim is currently unfounded, but not with a final dismissal. It is also essential that the defense must be expressly raised; the court will not consider it ex officio.
What are typical examples of suspensive defenses under German law?
Typical examples of suspensive defenses include, in particular, the defense of unperformed contract (Section 320 BGB), the right of retention (Section 273 BGB), the defense of unfulfilled reciprocal contract in contracts for work and services (Section 641 para. 3 BGB), as well as the defense of deferment (Section 205 BGB). Suspensive defenses also regularly occur in tenancy law (Section 556b para. 2 BGB – tenant’s right of retention in case of defects) and sales law (Section 320 BGB by analogy). These defenses are characterized by establishing a right to refuse performance until certain conditions are met.
What are the legal consequences of asserting a suspensive defense?
If a suspensive defense is successfully asserted, the enforceability of the claim is suspended until the underlying factor is remedied. This means the creditor cannot demand or enforce performance in court as long as the reasons for the defense continue to exist. Once the reason for the defense lapses, the enforceability of the claim revives without any separate assertion being required. The defense therefore does not have a right-destroying, but only a right-suspending (suspensive) effect.
Can a suspensive defense also be asserted retroactively?
Yes, a suspensive defense can, in principle, also be asserted later during ongoing litigation, provided the court has not yet reached a final decision and the decision rejecting the claim is not yet final. However, it only has effect for the present and future; the claim remains ‘dormant’ to that extent. Should the underlying factor have lapsed before assertion, the assertion is ineffective. The procedural admissibility is governed by the provisions of the Code of Civil Procedure, in particular Section 296 ZPO (delay of means of attack and defense).
Who has the burden of proof when asserting a suspensive defense?
In principle, the party relying on a suspensive defense bears the burden of pleading and proof for the facts forming the basis of the defense. For example, under Section 320 BGB, the debtor must prove that the creditor has not provided the agreed counter-performance. Similarly, in the case of the right of retention under Section 273 BGB, the existence and maturity of the counterclaim must be substantiated and, if contested, proven by the party raising the defense. Only when the defense ceases (e.g., upon fulfillment of the counter-performance) does the claimant bear the burden of proof to the contrary.
