Concept and fundamentals of the third-party objection action
Die Third-party objection action is a special legal remedy provided by the German Code of Civil Procedure (ZPO) to safeguard third-party rights in enforcement proceedings. It grants a person who claims that an object subject to enforcement belongs to them rather than to the debtor the opportunity to assert their rights in court and fend off enforcement measures against that object.
Legal classification
The third-party objection action is regulated in §§ 771 ff. ZPO and is classified as one of the so-called enforcement defense actions. It constitutes a lawsuit by a third party against the enforcement creditor, aiming to limit or prevent the enforcement procedure concerning a particular object, if the plaintiff claims to have a better right to it than the debtor does.
Distinction from other legal remedies
The third-party objection action must be distinguished in particular from the enforcement reminder (§ 766 ZPO) and the enforcement defense action under § 767 ZPO. The enforcement reminder is directed against measures of the enforcement court and is not an independent lawsuit. The enforcement defense action, on the other hand, is only available to the debtor when they raise objections to the enforced claim. The third-party objection action, however, grants third parties a right of action when their own rights are affected by the enforcement.
Prerequisites for the third-party objection action
Substantive requirements
The prerequisite for the third-party objection action is that the plaintiff asserts an independent right to the object affected by enforcement, which excludes enforcement. This particularly applies to the following claims:
- Ownership (e.g., movable property § 903 BGB, immovable property § 985 BGB)
- Possessory rights (e.g., landlord, seller with retention of title)
- Pledge rights and other limited real rights
- Claims arising from security transfer of ownership or from a leasing agreement
The asserted right must prevail against the party conducting enforcement and must go beyond the right of the debtor. The plaintiff’s claims are examined in civil court proceedings.
Procedural requirements
The third-party objection action must be directed against the enforcement creditor and — if distributions have already occurred — against other involved parties as well (§ 771 para. 1 ZPO). The action must be filed with the court of first instance competent for the main proceedings.
There is generally no deadline for bringing the third-party objection action. However, if enforcement is already well advanced, loss of rights can occur due to time passing (limitation, loss of claim, forfeiture).
Proceedings for the third-party objection action
Filing the action and procedure
Filing a third-party objection action initiates ordinary civil proceedings. The court examines whether an object available to the debtor, or a right of the plaintiff, is actually affected. The plaintiff bears the burden of presentation and proof that they hold a better right to the seized object than the debtor.
Protective measures during the proceedings
The court may, on application, order interim measures to protect the plaintiff pursuant to § 771 para. 2 ZPO, in particular suspending enforcement against the disputed item until the claim is decided.
Legal consequences of a successful claim
If the third-party objection action is successful, enforcement against the respective object must be declared inadmissible. Enforcement measures that have already been taken must be lifted or reversed, and the plaintiff regains possession of their object. A dismissal of the action rejects the claim and allows the enforcement proceedings to continue.
Remedies
An appeal and revision are available against the judgment of the court of first instance in accordance with the general rules of the ZPO, provided the statutory requirements are met (§§ 511, 543 ZPO).
Practically relevant cases
Typical cases for the third-party objection action arise in the following situations:
- Enforcement against seized itemswhich do not belong to the debtor (e.g., in the case of security transfer of ownership, leasing, renting)
- Garnishment of claimswhere the claim has been assigned to a third party
- Real estate encumbered in the land registerwhere a third party asserts a real right (e.g., land charge)
The third-party objection action is especially significant for enforcement against movable property, real estate, or claims.
Costs and risks
The costs of a third-party objection action are governed by the general rules of civil procedure. Court fees and, if applicable, further procedural costs will be incurred. If the plaintiff is unsuccessful, they must bear the full costs of the proceedings. In the case of a successful action, the enforcement creditor may be obligated to indemnify the plaintiff.
Significance and function within the system of legal protection
The third-party objection action serves to protect third parties from having their rights affected by enforcement measures targeting the debtor. It ensures that enforcement can only be carried out against the debtor’s assets, not those of third parties. Accordingly, the third-party objection action is an important instrument within individual enforcement proceedings and in insolvency proceedings where individual measures are permitted.
Deviating rules in insolvency law
In insolvency proceedings, the third-party objection action has largely been replaced by the so-called exclusion claim (§ 47 InsO). Overlaps may still occur. In such cases, it must always be examined whether the claim for surrender is subject to a right to exclusion enforceable in insolvency or must be asserted under general civil procedure.
Literature and further links
- Thomas/Putzo, ZPO, commentary on § 771
- Musielak/Voit, ZPO, commentary on enforcement defense and third-party objection actions
- Gernot, Law of Enforcement, textbook
Note: This lexicon article is designed to provide comprehensive and structured information on the concept of the third-party objection action. It does not claim to address all individual issues that may arise in specific cases.
Frequently asked questions
What formal and substantive requirements must be met for a third-party objection action to be admissible?
For admissibility under § 771 ZPO, both formal and substantive requirements must be fulfilled. Formally, enforcement proceedings against the debtor must be pending, and a specific enforcement action against a particular object must be imminent or already underway. The action must be filed with the competent court of first instance in whose district the enforcement takes place. Substantively, the third party must assert that they have a right in rem to the object concerned that excludes its disposal (e.g., ownership or usufruct). This right must have arisen before the attachment or other enforcement measure. The burden of presentation and proof is on the third party to show that and why their right prevails over enforcement.
What is the objective of the third-party objection action and against whom is it specifically directed?
The objective of the third-party objection action is to prevent or reverse enforcement against a specific object, because the third party has a better right to it than the creditor. The action is generally directed against the creditor conducting the enforcement and against the debtor, since the debtor, as the dispositional party, is involved in the proceedings. The lawsuit aims to establish that enforcement against the object from the creditor’s enforcement title is inadmissible as long as the right asserted by the third party exists.
What typical objections can the third party raise in the context of the third-party objection action?
Within the scope of the third-party objection action, the third party may raise various objections that are effective both against the creditor and the debtor. The most common are rights in rem, such as ownership of the object, pledge rights, usufruct, or other rights that hinder disposal (e.g., a contractually agreed prohibition of disposal with real effect). Certain personal rights, which exclude the enforcement of the title against the respective object (such as possession rights from a rental or leasing agreement), may also be asserted. However, it must always be examined whether the right is stronger than that of the creditor and that it actually exists and is held by the plaintiff.
What is the procedure after a third-party objection action is filed?
Once the third-party objection action is filed, the proceedings are generally conducted as civil litigation. After formal service of the statement of claim to the defendants, the court reviews in an adversarial process whether the prerequisites for excluding enforcement both retrospectively and for the future are met. The court examines both the admissibility and merits of the action and decides after an oral hearing. The proceedings may be concluded by judgment or, in some cases, by settlement. During the ongoing process, the third party may apply for interim suspension of enforcement or other protective measures pursuant to § 769 ZPO.
What are the legal consequences of a successful third-party objection action?
If the third-party objection action is upheld in whole or in part, the court declares that enforcement against the affected object from the enforceable title is inadmissible. The creditor and bailiff must then refrain from any further enforcement actions relating to this object. Any enforcement measures already carried out (such as garnishment or realization of the object) must be reversed, provided they have not yet been completed or can still be legally undone. The third party is thus protected from unjustified enforcement.
Can the third-party objection action still be successful after the object has already been realized?
The third-party objection action primarily serves as preventive legal protection, i.e., to prevent impending or ongoing enforcement. However, if the object has already been irrevocably realized, such an action is inadmissible, as it would be moot. In such cases, the third party must generally sue for damages against the creditor or for restitution of the proceeds (where distribution has not yet taken place). Thus, the third-party objection action applies only to objects that remain available and have not been finally excluded from enforcement.
What specific procedural risks and costs are associated with filing a third-party objection action?
Bringing a third-party objection action entails significant procedural risks for the third party. The burden of presentation and proof lies with the third party, who must provide detailed factual and legal substantiation of their entitlement to the object. Should the action be unsuccessful, the third party bears the entire costs of the proceedings, including those incurred by the opposing side. This includes both court and legal fees. There is also a risk that the third party may face a claim for damages if their assertions prove to be incorrect or made recklessly.
