ZPO guide: Submission of evidence after the taking of evidence
LEGAL+ NEWS
The Federal Court of Justice generally sets strict requirements for the existence of the prerequisites for a rejection of a party’s submission due to delay.
In a case of practical relevance, an appellate court had conducted a taking of evidence and then, as is customary, granted the parties a certain period of time to comment on the results of the taking of evidence. Within this period, the party providing evidence referred to a witness who had not yet been named. The court of appeal wrongly disregarded this request for evidence and wrongly ruled that it was late, as the BGH found in its decision of March 23, 2021 (case no. II ZR 80/20). The reason for this is that the opportunity to comment on the results of the taking of evidence is tantamount to an indulgence in pleadings, thereby postponing the conclusion of the oral hearing.
The judgment
The BGH stated:
(…)
Article 103 (1) of the Basic Law obliges the court to take note of and consider the submissions of the parties to the proceedings. In this sense, Art. 103 Para. 1 GG in conjunction with the principles of the Code of Civil Procedure requires the consideration of significant requests for evidence. The non-consideration of a significant offer of evidence violates Article 103 (1) of the Basic Law if it is not supported by procedural law (established case law, BGH, decision of October 20, 2020 – VII ZR 577/19, NJW-RR 2021, 58 marginal no. 9 with further references).
The Court of Appeal was not permitted to reject the defendant’s request to take evidence from his wife as a witness pursuant to Section 296a ZPO.
Contrary to the opinion of the Court of Appeal, the defendant did not submit the request for evidence after the conclusion of the oral hearing. The Court of Appeal also gave the defendant the opportunity to comment on the taking of evidence and granted a deadline for written submissions, which the defendant complied with. By granting a deadline for written submissions, the conclusion of the oral hearing is extended for the affected party with regard to the admissible reply until the deadline expires (see BGH, judgment of April 21, 2015 – II ZR 255/13, NJW-RR 2015, 893 para. 12).
The timeliness of the request for evidence cannot be called into question because it would have been an inadmissible submission with regard to the time limit. The right to comment on the result of the taking of evidence also includes the right to submit new requests for evidence (BGH, judgment of October 25, 2013 – V ZR 147/12, NJW 2014, 550 marginal no. 25 with further references).
The considerations of the Court of Appeal that the defendant was obliged to submit his request for evidence earlier are irrelevant. These statements are irrelevant for the requirements of Section 296a ZPO . The extent to which these circumstances can justify a rejection of the submission of evidence on the basis of other preclusion provisions (§ 531 Para. 2, §§ 530, 296 Para. 1, § 525 Sentence 1 in conjunction with §§ 282, 296 Para. 2 ZPO) does not need to be decided here. §§ Sections 282, 296 (2) ZPO), no decision is required here because the Federal Court of Justice, as the appellate court, is prohibited from basing the rejection on provisions other than those applied by the lower court (BGH, default judgment of February 22, 2006 – IV ZR 56/05, NJW 2006, 1741 para. 12; decision of March 21, 2013 – VII ZR 58/12, NJW-RR 2013, 655 para. 11).
(…)
My rating:
The judgment must be upheld, as the assumption of delay has far-reaching consequences for the party concerned. In the present case, the Court of Appeal’s reasoning for the assumed delay was not supported by the Code of Civil Procedure. The BGH did not have to decide on other grounds for delay that the Court of Appeal had not taken into consideration.
LATEST ARTICLES
Degree of completion of the work
The standards relating to the right to refuse acceptance (Section 640 (1) sentence 2 BGB, Section 12 (3) VOB/B) state that acceptance of the work may not be refused due to insignificant defects. There is no statement on the required degree of completion of the work as a prerequisite for acceptance.
However, the question of what degree of completion the work must have reached in order to be considered ready for acceptance is very important, particularly in the case of plant construction, which is usually very complex.
Major deficiency in plant engineering
Answering the question of whether there is a significant defect is very difficult, especially in often very complex plant construction. The absence of major defects is the decisive prerequisite for acceptance. The latter has considerable legal and practical significance: the start of the warranty periods is regularly linked to this. In addition, the due date of a considerable part of the agreed remuneration generally depends on acceptance.
Formal acceptance under building law
Particularly in the case of complex (plant) construction projects, the contracting parties often agree – usually on the basis of the VOB/B – to carry out a so-called formal acceptance. The following article deals with the question of what such a formal acceptance is actually all about.
CONTACT
+49 (40) 57199 74 80
+49 (170) 1203 74 0
Neuer Wall 61 D-20354 Hamburg
kontakt@legal-plus.eu
Benefit from my active network!
I look forward to our networking.
This post is also available in: DE
