SECTION XIII - The Action (klage)

Author:E. J. Cohn and G. Meyer
Profession:Sir
Pages:52
 
FREE EXCERPT
  1. An action (Klage) is brought by way of a written statement of claim, which is also called Klage. The word Klage signifies therefore both the written plea opening the case and the action in the English sense of this word.

    For rules on the contents of the Klage in the former sense see sections 130, 131 and 253, ZPO. There is a distinction between the facts, which ' must' be and those which ' should ' be pleaded (Mussvorschriften and Sollvorschriften). If any of the Mussvorschriften are missing, the Klage is invalid, while the absence of the Sollvorschriften has no legal consequences.

  2. It is usual to state in the written Klage the legal rules on which the claim is based in accordance with the general principle that the written pleadings may refer to law as well as to fact. Thus in appropriate cases the Klage may contain lengthy disquisitions on the legal questions at issue.

    There is no rule restricting the length of pleadings. The Klage will also specify in detail the evidence on which the plaintiff intends to rely for his contentions, giving the names and addresses of witnesses and experts and stating the points on which the plaintiff wishes them to be heard. As a result of this and the rule stated in the first sentences of this paragraph a German Klage looks strikingly different from an English statement of claim.

  3. With regard to the contents, three different kinds of Klagen are distinguished under German law:

    (1) Actions for satisfaction (Leistungsklagen). These are actions by which the plaintiff demands that the defendant should make payment or render other performance, such as repair an article, deliver certain goods. etc. This is the most frequent kind of action.

    (2) Actions for acknowledgment (Feststellungsklagen). These are actions by which the plaintiff asks the Court to confirm either the genuineness or the falsity of a document, or the existence or non-existence of a legal relationship, e.g. to confirm that the plaintiff has executed a valid agreement for the tenancy of a house or that the defendant is liable in damages to the plaintiff. This form of action enables the plaintiff to bring an action for anticipatory breach of contract by the defendant or to claim damages although the extent of the damage is not yet ascertainable. A Feststellungsklage is permissible whenever the plaintiff has a lawful interest in obtaining an immediate judicial confirmation of his rights (section 256, ZPO). Such an interest exists where there is an...

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