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

LEGAL+ NEWS

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?

LATEST ARTICLES

Compliance

Guide to GmbH law: The duties and liability risks of the managing director of a GmbH

In the external relationship, only the GmbH is liable, which can indemnify its managing directors. However, this does not mean that external liability of the managing directors is excluded.

In addition to personal liability in the area of tax and social security law, the managing director may also be liable on the basis of his own contractual obligations, on the basis of an induced legal appearance, on the basis of (personal) culpability when concluding the contract and in tort.

For the aforementioned reasons, every managing director of a GmbH is urgently recommended to be familiar with the requirements for proper managing director activities.

Estimation of fictitious defect rectification costs

For some time now, a landmark decision by the Federal Court of Justice has clarified that the contractual claim for damages in lieu of performance pursuant to Sections 437 No. 3, 280, 281 BGB can be assessed on the basis of the “fictitious” defect rectification costs that are likely to be necessary but have not yet been incurred, see BGH ruling of 12.03.2021, Ref. V ZR 33/19. In practice, it is of particular relevance how the court called upon to decide in an individual case is to determine the amount of such fictitious damage costs.

EUGH ruling “LKW Walter”

The possibility of being able to enforce one’s own rights as easily and quickly as possible in cross-border EU business transactions, which is very welcome in principle, has some pitfalls. The author’s experience shows that traders are often overwhelmed when they receive legally relevant mail from abroad. This is not least due to the fact that court documents received from abroad often do not meet the requirements of European law.