RGZ 67, 365 II. Civil Senate
31 January 1908
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Irene Snook
Professor B. S. Markesinis

On the plaintiffs's request and in respect of several claims held by the defendant, two attachment orders were made against the defendant, dependent on the provision of security. The defendant lodged an appeal against both attachment orders used by the plaintiff to distrain one of the defendant's claims. After oral proceedings, the court did not need to decide on the legality of the attachment, since the parties reached a settlement, according to which, amongst other things, the attachment orders were deemed to be lifted. In the course of a subsequent action brought in respect of a residual outstanding sum which was part of the plaintiff's main claim, the defendant raised a counter-claim for damages under para. 945 ZPO (Code of Civil Procedure) by alleging that the attachment orders had been unfounded ab initio. The Landgericht (High Court) held this claim to be unfounded, the appeal court held that it was basically justified. On appeal by the plaintiff the latter decision was overturned and the case referred back to the appeal court for further deliberation and decision, whilst the appeal court's opinion was criticised according to which, unless the illegality of the attachment order had otherwise been established, a claim from para. 945 ZPO can only be justified when the proceedings which dealt with the objection (Widerspruchsverfahren) ended in a decision lifting the attachment orders. Decisive for the renewed deliberations must be whether or not, given the circumstances, the two attachments in question had in fact ab initio been unfounded or whether the attachment orders were justified. In its second decision the appeal court held that the attachment orders had ab initio been justified, so that the defendant's claim for damages was unfounded. The further appeal was rejected for the following


Following the decision of the Reichsgericht (Imperial Court) of 19 February 1907, the appeal court investigated whether both attachment orders of 17 and 24 August 1904 were in fact ab initio unjustified or whether these orders were correctly made. The appeal court ascertained that the underlying claims existed at the time when the orders were made (....) and that there was a reason for making an attachment order as required by para. 917 ZPO As a result, the court then stated that the attachment orders were ab initio justified so that the defendant could therefore not claim damages based on para. 945 ZPO. (......)

The defendant disputes the appeal court's finding that there had been a reason for ordering the attachment and claims that this was due to a misinterpretation of the law. The appeal court reasoned that where para. 917 ZPO requires concern for the underlying claims, objective criteria are to be used. Only those concerns are worthy of protection which resulted from a calm and rational appraisal of the facts. In this case, the overall picture as perceived by the plaintiff was so negative that a careful and rational judge could have assumed that without attachment the claims would be in danger (Arrestgefahr).

In particular, the assumption was justified that the defendant conducted his affairs without due care, that he used his funds for non-business purposes and that this strange behaviour would probably lead to a collapse of his business with the result that he could not fulfil his obligations towards his creditors. It must be admitted, that this fear ultimately proved to be unfounded. (....) A claim under para. 945 ZPO is only well founded when, at the time the attachments are ordered, there was no concern as required under para. 917. In this case, the the parties' findings had been so strange and startling that a careful and rational person could regard the claims as being threatened. As far as the attachment orders had been justified (....), there are no grounds for a claim for damages under para. 945 ZPO even if the concern justifying the attachment orders was later found to be unwarranted........

In response, the further appeal submitted that liability for damages under para. 945 ZPO does not dependent on the creditor's fault. As the appeal court established, fears were justified that the defendant's business would collapse and lead to losses for the creditors. This proved that ,objectively seen, there had been no reason for an attachment and the creditor was liable for damages. Good faith and the creditor's subjectively justified concern cannot eliminate liability for damages.

These submissions are insufficient to overturn the appeal court's decision. It is correct, as the appeal court judge rightly held that 1) fault of the attachment creditor is not a precondition for a claim for compensation under para. 945, and that 2) a creditor's good faith and his merely subjective fears are insufficient to substantiate "concern" in the sense of para. 917 and cannot prevent that an action is brought under para. 945. But the court used objective criteria for assessing the concern that without an attachment the enforcement of the decision could be thwarted or made considerably more difficult, a concern which is a necessary prerequisite for any attachment. The court defined this concern as a fear felt by a reasonable and well-balanced person after thorough and careful study of the given circumstances. The court then stated that the parties concerned found such strange and worrying circumstances that a carefully observant person could have assumed dangers to be afoot and that, under the circumstances at the time when the attachment was ordered, the judge was bound to make the orders. The appeal court thus denied liability for damages under para. 945, although later on the concerns were shown to have been unfounded and subsequent investigations showed that the defendant's behaviour presented no danger to his creditor.

The appeal court's reasoning must be confirmed. Concern is an experience which draws conclusions from given circumstances and makes predictions in respect of the likelihood of future events. Concern in the sense of para. 917 exists when there are facts which lead a well-balanced and sensible person, especially a judge, to the assumption that the future enforcement of a judgment is jeopardised. Attachment is ordered in response to suspected changes in the debtor's current financial situation. The creditor is to be protected against events likely to occur in the future. Even past events can lead to the fear that the enforcement of a judgment could be thwarted or hindered at a future date. (......) It is of no consequence that such fears are later on shown to have been unfounded. It is always doubtful whether or not future events will in fact materialise. The important factor is whether or not there had been sound reasons to fear their occurrence. para. 917 ZPO does not require that enforcement of the judgment would in fact have been thwarted or made considerably more difficult without an attachment order. The mere concern is sufficient that this result could materialise. The measure of such concern can only be assessed for the time at which an attachment order was made. (....)

As shown by the preparatory legislative documents and according to their inner legislatory logic, the provisions in para. 945 ZPO are connected to the provisions introduced by amendments to the Code of Civil Procedure in paras 302 IV 3, 600 II, and 717 II ZPO. In all these cases a claim was erroneously assumed to exist, and a person had been declared entitled to execute a judgment in order to enforce performance of an obligation, although in fact he had no such claim for performance. The same applies for cases where a person who has no claim obtains an attachment order and proceeds against a purported debtor. Such attachment is always unfounded ab initio and leads to a claim for damages for the same reason and in the same way as in the cases of paras 302, 600 and 717. But the situation is quite different where there was a claim and where, according to the provisions applicable for attachment proceedings, measures were seen to be necessary and legally justified in order to safeguard that claim. The provisions in paras 302, 600 and 717 have no bearing on this case or on the applicability of para. 945 for cases such as this.

This page last updated Thursday, 01-Dec-2005 11:04:43 CST. Copyright 2007. All rights reserved.