+++ Facts (reduced to the essentials)
G has a legal claim for payment against S. S runs a farm. At G’s request, a bailiff goes to S and seizes three of his cows. S files an enforcement notice. S believes that the seizure is inadmissible because the animals belong to his farm.
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The Jurafuchs method breaks down: These are the 3 most important legal questions to understand about this case
1. S is of the opinion that the enforcement violates Section 865 Paragraph 2 of the Code of Civil Procedure. Is the reminder of enforcement admissible (Section 766 of the Code of Civil Procedure)?
Yes, indeed!
A reminder of enforcement pursuant to Section 766 of the Code of Civil Procedure is permissible if the person filing the reminder takes action against an enforcement measure by complaining that formal law has been violated. According to Section 865 Paragraph 2 of the Code of Civil Procedure, objects that are subject to real estate enforcement (Section 865 Paragraph 1 of the Code of Civil Procedure) cannot be seized as part of movable property enforcement or can only be seized under certain conditions. Section 865 Paragraph 2 of the Code of Civil Procedure is a special requirement for the type of compulsory enforcement or a special requirement for the seizure of property and is therefore a formal law, the violation of which can be asserted with the reminder of enforcement. S bases his reminder of enforcement on the fact that the cows belong to his farm and are therefore subject to real estate enforcement.
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2. The enforcement reminder is justified if Section 865 Paragraph 2 of the Code of Civil Procedure is violated. This requires that the cows are part of the liability association of a mortgage (Section 1120 of the German Civil Code). Is this the case (see Section 98 No. 2 of the German Civil Code)?
And!
According to Section 865 Paragraph 1 of the Code of Civil Procedure, all items that are part of the liability association of a mortgage are subject to real estate enforcement. In addition to the property, this also includes its products, other components and accessories (Section 1120 of the German Civil Code). Accessories are movable items that, without being components of the main item, are intended to serve the economic purpose of the main item and are spatially related to it in accordance with this purpose (Section 97 of the German Civil Code). In the case of a country estate, the livestock intended for commercial operations are to be regarded as accessories (Section 98 No. 2 of the German Civil Code). The cows are intended for the commercial operations of the farm and are therefore accessories to the liability association of a mortgage.
3. There is actually no mortgage on S.’s farm. Does this exclude a violation of Section 865 Paragraph 2 of the Code of Civil Procedure?
No, that is not the case!
According to Section 865 Paragraph 2 of the Code of Civil Procedure, items that are part of the liability association of a mortgage cannot be seized or can only be seized under certain conditions. This applies regardless of whether a mortgage actually exists. It is sufficient if the items, if a mortgage existed, would fall under its liability association. The cows are part of the liability association of the mortgage as accessories to the property and therefore may not be seized. It is irrelevant that there is actually no mortgage on S’s property. If a mortgage actually exists, its owner can also invoke the violation of Section 865 Paragraph 2 of the Code of Civil Procedure as a third party. He can either lodge a reminder of enforcement (Section 766 of the Code of Civil Procedure) or choose the more legal-intensive route of a third-party objection (Section 771 of the Code of Civil Procedure). Sections 865 Paragraphs 1 and 2 in conjunction with the land charge then form a right that prevents the sale.
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