How to obtain a German judgment many months earlier than by way of a “standard” lawsuit
In certain situations, the German Code of Civil Procedure (Zivilprozessordnung) allows the plaintiff to file a fast track civil lawsuit, the so called “Urkunden-, Wechsel- und Scheckprozess”. The standard expression used by German lawyers is “Urkundsprozess”, which translates into “deed claim proceedings”.
These special “deed claim proceedings” (besondere Verfahrensarten) in a German civil court must not be confused with temporary restraining orders or preliminary injunctions (einstweilige Verfügungen, einstweilige Anordnungen), which are also available in Germany but have very different requirements, inter alia urgency (Dringlichkeit).
What is an Urkundsprozess?
In order to file a German “deed claim proceeding”, the plaintiff must not demonstrate any urgency at all. Instead, the deed claim lawsuit route is available to any plaintiff who is able to substantiate his or her claim by providing to the court specific documents, inter alia deeds (Urkunden), checks (Schecks), promise to pay notes (Schuldscheine), acceptance bills etc.
These special Urkundsprozess proceedings are regulated by s. 592 et seqq. German Civil Procedure Rules. In order to be able to opt for this procedural route, the plaintiff must be able to prove the claim entirely bydocumentary evidence (Urkundenbweis). In other words: The Plaintiff must produce one or more documents, in the original, which fully prove the claim. There must be no need for additional evidence. If, for instance, the plaintiff needs to call a witness for certain facts in order to prove the claim, then the fast track proceedings are not available and the plaintiff must file a “normal” civil procedure case.
The most evident example of when a Urkundsprozess is admissible is when the plaintiff is in possession of an original IOU (Schuldschein) signed by the debtor. Then the complaint (statement of claim, in German “Klageschrift”) is as simple as it can possibly get:
“The Defendant owes the client EUR xxx as evidenced by the promise to pay note dated xxx and hereby submitted to the court as an original.”
In a situation like this, the plaintiff has the option to file the lawsuit as a standard civil proceeding (Klageverfahren) or as “deed claim proceeding ” (Klage im Urkundsverfahren).
Why opt for the fast lane civil procedure?
The advantage of the fast track “deed claim proceeding” for the plaintiff is that the defendant may — at that stage — only defend himself against the claim with documentary evidence. In the above example, it may well be the case that the defendant had already repaid the debt in cash, but has not been given back the original IOU (maybe because the plaintiff had lied to him about having lost the IOU). In a situation like this, the defendant is unable to prove by way of documentary evidence that the debt has already been repaid. He will thus lose the lawsuit in the fast track lane because here he is not allowed to name witnesses etc. The plaintiff is awarded a “deed claim proceeding judgment” which he can immediately use to enforce the claim against the debtor.
Before you lose your faith in the German legal system, let me clarify: That is, of course, not the end of the story. The judgment in the fast track proceeding is not yet final. The defendant can apply to the court for the case to remain pending (Nachverfahren), see s. 599 et seq. German Cicil Procedure Code. If the defendant choses to do so, the lawsuit is continued as a “normal” civil case where all types of evidence are admissible (see “Evidence in German Civil Litigation”). Now, the defendant can attempt to prove that the plaintiff has already been repaid, for instance by naming a witness who was present when the repayment was made, or a witness who has heard the plaintiff say that he has already received the money. If the defendant wins in this second stage (Nachverfahren), the first judgment will be declared void and the plaintiff must compensate the defendant for any costs and other damages incurred.
Thus, a plaintiff should only opt for the fast track if he or she is confident that the claim will also stand the test of a possible later standard civil trial. If the plaintiff does firmly believe in the claim, the fast track route should be recommended by the German trial lawyer, because it will enable the claimant to enforce the claim months or even years earlier. Another huge advantage of a judgment resulting from fast track proceedings is that those judgments can be enforced immediately and without having to post security for costs, see section 708 German Civil Procedure Rules.
Practical tips for German contract lawyers
Smart contract lawyers who are aware of the German deed claim proceeding route, will always strive to word contracts in such a way which will later permit their client to opt for the fast track lawsuit. If, for example, you represent a client who desires to work as an external consultant for a German company on a monthly fixed fee basis, you can draft the payment clause like this:
Company shall pay Consultant a monthly fee of EUR 5,000.
In that case, if the German company does not pay, there is hardly a way for the consultant to chose the fast track route, because the consultant will be unable to prove with documentary evidence that the company has not paid him. The situation changes, however, if you word the clause like this:
Company shall pay Consultant a monthly fee of EUR 5,000 which must be transferred onto the Consultants bank account held with X-bank, bank account number 123 456, and which must be credited to said account until the third workday of said month.
Now, the consultant is able to file a deed claim proceeding, because he can now prove the entire claim by submitting to the court (i) an original signed version of the agreement and (ii) an original bank statement for the relevant period from which is apparent that the amount has not been credited to the specified account.
Find more information on litigation in Germany in these posts:
- Making a Court Claim for Money in Germany: It’s actually quite easy
- Standard of Proof in German Civil Litigation
- German Litigation Experts explain Civil Procedure Rules
- A German Claimant can’t be his own Witness
- Compensation for a wrecked Car under the German Law of Torts
- Does German Law of Torts know the Egg Shell Skull Rule?
- How expensive is a German Lawsuit?
- Expert Reports on German Law
For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.
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