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ZPO guide: Obvious facts in civil proceedings - Do facts that can be researched on the Internet require a taking of evidence in court?

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.

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