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Documentary action in civil proceedings: definition, procedure and context with the order for payment procedure

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This guide explains the document action in German civil proceedings, its differences to the dunning procedure and gives tips on when it makes sense.

What is a document action?

An action based on documentary evidence or a documentary process offers the possibility, as an accelerated procedure, to bring an action – initially – only by means of documents, see Section 592 ZPO.

Consequently, no witnesses are heard and no expert opinions are prepared in the so-called documentary proceedings. Only the claim arising from the document is examined. The defendant’s defense options are limited to documents. The latter means:

Even if the claim asserted by means of documents is unfounded, but the defendant cannot prove this by means of documents, the plaintiff will initially win the documentary proceedings and thus obtain a – provisionally – enforceable title.

However, the defendant then has the opportunity to raise all objections to the claim that he was denied in the documentary proceedings in so-called subsequent proceedings (Section 600 ZPO). In the event of success, the plaintiff, who has taken enforcement measures on the basis of the title obtained in the documentary proceedings, is obliged to pay damages to the defendant.

Documentary action vs. dunning procedure

The documentary process described above should be seen in conjunction with the dunning procedure. Both procedures represent an opportunity to obtain an enforcement order in a significantly shorter time compared to a regular lawsuit.

While an unfounded objection by the defendant in dunning proceedings simply leads to the plaintiff having to pursue his claim further in regular legal proceedings, the action for documentary evidence offers the opportunity to obtain an enforcement order by means of a document that suitably securitizes the claim in question. An objection by the defendant alone is therefore not sufficient. Only if the defendant succeeds in overturning the merits of the claim on the basis of the document must the plaintiff – as in the case of the dunning procedure – pursue his claim further in regular legal proceedings.

Assessment: When is an action for documentary evidence the right procedure for you?

The action on documentary evidence is intended to speed up the proceedings, but can only fully exploit its advantages if the claim clearly emerges from the document and the defendant does not raise any substantiated objections. Otherwise, the proceedings can – or rather: will – turn into regular legal proceedings (subsequent proceedings) with the result that the plaintiff should have opted for the normal proceedings from the outset.

Even if the legal requirements for bringing an action for documentary evidence are met, this is therefore not always the best choice.

In particular, the plaintiff is advised to anticipate the defendant’s potential resistance in advance and to plan accordingly. If the defendant’s resistance seems likely, it makes more sense in case of doubt to opt directly for regular legal proceedings in order to save time and resources.

However, before choosing this method, the specific facts of the case should always be considered and the advantages and disadvantages weighed up.

Do you have any questions?

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Obvious facts in civil proceedings – is it necessary to take evidence in court?

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In the digital era, in which search engines such as Google play a central role, “obvious facts in civil proceedings” are becoming increasingly important. Section 291 of the German Code of Civil Procedure (ZPO) makes it clear that “obvious facts” do not require evidence to be taken in civil proceedings. However, what exactly is meant by an “obvious fact” and how it may be used often raises questions in practice.

Significant clarifications due to the BGH ruling of January 27, 2022 (case no. III ZR 195/20)

The Federal Court of Justice (BGH) recently clarified important points in relation to “obvious facts” in a highly practical ruling.

It first confirmed that information that can be found on the internet can be considered “obvious facts” within the meaning of Section 291 ZPO. In addition, the BGH provided valuable guidance for the courts on how to deal with such facts.

Requirements of the BGH for the utilization of “obvious facts”

In its ruling of January 27, 2022 (case no. III ZR 195/20), the BGH emphasized in particular the need for a court to give the parties the opportunity to comment before incorporating an “obvious fact” into its decision. This applies even if this fact was taken from the internet. A reference can only be omitted if both parties are already aware of the fact in question and its relevance to the decision.

The BGH stated verbatim:

“(…) According to the established case law of the Federal Court of Justice (…), a court may not base its decision on facts without first giving the parties the opportunity to comment on them. This also applies to obvious facts within the meaning of Section 291 ZPO. These also include facts that the court has taken from the Internet; If it wishes to make this the basis of its judgment, it must make the result of its investigations available to the parties and inform them by means of a reference (…).”

Exception: The obviousness and materiality of the fact is “readily apparent” to the parties.

However, by way of exception, a judicial reference should not be required if the facts or circumstances in question are “readily available tothe partiesand they are aware of their relevance to the decision“.

Expert assessment

This decision by the BGH respected and emphasized the constitutional right of both parties to be heard. The courts must inform the party concerned of the intended use of an “obvious fact”. This is the only way to give the party the opportunity to comment on it. Exceptions are only permitted in the case of generally known circumstances and their clear relevance to the case.

Do you have any questions and would you like advice?