SECTION XXV - Provisional Proceedings

Author:E. J. Cohn and G. Meyer
Profession:Sir
Pages:68
 
FREE EXCERPT
  1. The ZPO provides for speedy proceedings whose primary purpose is not to secure satisfaction for the creditor but merely to give him security for his claim, e.g., by blocking a banking account of the defendant, or to maintain a position whose disturbance is threatened, for instance, to prevent the erection of a building which may interfere with rights of a neighbour. The same claim may at the same time be the subject-matter of ordinary proceedings, possibly taking years to complete, but ending in a final determination, not a provisional order. In a few cases these proceedings may also be used for the purpose of obtaining satisfaction of a claim the nature of which render it of vital importance to avoid delay in dealing with it, as e.g., the payment to an

    illegitimate mother of her maintenance during the first six weeks after birth of the child. The ZPO deals with these proceedings in the 8th Book which is in general confined to execution. They are, however, in every respect, except as to the limitation of their scope, genuine civil proceedings.

  2. The ZPO distinguishes two types of provisional proceedings:(a) The Arrest, i.e., attachment the purpose of which is to obtain security for a claim which is expressed in money or may be converted into a claim expressed in money (section 916ff., ZPO).

    (b) The einstweilige Verfiigung, i.e., an interim order, often in the nature of an injunction, the purpose of which is either to prevent a threatening change of existing conditions which may render impossible or substantially more difficult the realisation of a right of one of the parties; or to provisionally deal with a situation where this is required to prevent substantial damage or any violence that is being threatened (section 937ff., ZPO).

  3. To obtain an Arrest the applicant must show that he has a claim suitable for protection by way of an Arrest (Arrestanspruch) and that there is a ground why such an arrest should be granted (Arrestgrund).

    EXAMPLE: A has sold goods to B, the owner of a Department store, and has a claim against him for the payment of 10,000 DM. Later he received creditable reports that B is selling out all his stock at a fraction of its value, has already sold his private residence and sent his furniture and other belongings to an address kept secret from all his friends. In such circumstances A would be entitled to obtain an Arrest against B.

    The Arrestanspruch must be either expressed in money or as a claim convertible into...

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