BGHZ 43, 289 V. Civil Senate (V BLw 25/64)
25 March 1965
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Kurt Lipstein
Professor B.S. Markesinis

The Area Court (Amstgericht) in Liebenburg, acting as special court in agricultural matters (Landwirtschaftsgericht) by an order of 29 June 1948 gave its consent, as required by the Procedure Regulations in Agricultural Matters of 1 January 1948 (LVO) to a contract whereby the owner of a farm agreed to transfer it to her two brothers in order to be divided into two separate farms. The conveyance never took place. Instead, pending an exchange of parcels, the brothers took a tenancy of the farm.

The court's consent was communicated informally to the two District Agricultural Offices (Kreislandwirtschaftsamt) in whose area the farm was situated and to the notary acting for the parties. In the course of a dispute in which the validity of the local court's consent had been challenged the local court served, on 11 April 1963, the order embodying its consent on the Agricultural Chamber (Landwirtschaftskammer) which was the superior authority in agricultural matters, competent to receive the notice in question. The latter appealed in time to the competent court, the Court of Appeal in Braunschweig, which dismissed the appeal on the ground that it was an abuse of legal process. Upon a second appeal in point of law the order to the Court of Appeal was quashed and the case was referred back for the following



The decision depends upon whether the lodging of the appeal constitutes an abuse of legal process. Contrary to the opinion of the Court of Appeal this is not the case.

It is recognised in practice and in the literature that the principle of good faith which permeates substantive law (para. 242 BGB) applies also in the law of procedure, not only in litigious proceedings but also in non-contentious litigation (Freiwillige Gerichtsbarkeit) and therefore also in proceedings involving agricultural holdings [references]. There are cases in which appeals not limited in time cannot be lodged after a disproportionately long interval. The late lodging of an appeal may offend against good faith which justifies the treatment of the appeal as inadmissible. In such cases it is also said that the right of appeal has been lost through laches (Verwirkung), which constitutes a special case of abuse of right. The passage of time must be accompanied by other circumstances, if a late entry of an appeal is to be regarded as final the situation created by the decision appealed against in the absences of an appeal, and were justified in so thinking [references].

The appeal in proceedings concerning agricultural holdings must be lodged within two weeks, beginning with the day when the order was served [references]. An ... appeal which is lodged after the time limit has passed is inadmissible.

According to the practice of the courts the loss of a right to appeal due to laches is not restricted to appeals which are unlimited in time but has also been allowed where the appeal was subjected to a time limit [references]. The question of laches may arise, for instance, if the service of the order was invalid owing to some omission and if therefore the time for lodging an appeal had not started to run, with the result that the appellant knew of the decision and delayed lodging an appeal for such a long time that in the particular situation it is contrary to good faith to lodge it now. Here also the mere fact that a long period of time has passed is insufficient to constitute laches. No general principle is embodied in the legislation to the effect that a decision cannot longer be appealed against after a certain time has passed irrespective of whether the decision has been served nor not. Instead a time limit for appealing against judicial decision must be provided for expressly, as it was done for certain situations [references] which issue need not be considered here [references]. The fact that the parties to the agreement assumed at all times that the contract had been approved with legal effect is of no decisive importance, if only for the reason that the planned division of the farm has not taken place hitherto and that after the conclusion of the contract it has been run by the two brothers of the owner together. The fact is decisive that the Agricultural Chamber only came to know of the approval of the contract when the decision was served on it as late as 11 April 1963. For this reason alone the appeal which has been lodged in time cannot be regarded as an inadmissible exercise of legal process, even if many years have passed since the decision was pronounced ... It is also not possible to agree with the Court of Appeal that the Agricultural Chamber must be deemed to have cognisance of the decision of the area court for along time. The question is irrelevant as to whether the Agricultural Chamber could have obtained cognisance without difficulties of the decision which should have been served on it. The Agricultural Chamber was under no obligation to make any such enquiries. The Court of Appeal fails to consider that it is the duty of the court to serve judicial decisions. The Agricultural Chamber [references] could assume that decisions which had not yet been served on it [reference] would be served on it subsequently.

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