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Federal Court of Justice: permissible substitution of the claim in dispute in an objection to a default judgment

According to an interesting decision of the Federal Court of Justice in terms of procedural law, it is permissible to only pursue a different claim with the objection after a default judgment has been issued than before. The restriction in appeal proceedings, according to which an appeal is inadmissible if it is not also directed at least against the specific complaint arising from the first instance judgment, therefore does not apply to the objection.

In the case decided by the Federal Court of Justice (BGH) on 20.11.2024 (case no. VIa ZR 760/21), the plaintiff, as the purchaser of a vehicle, initially claimed damages in her own right, alleging a warranty under sales law and tortious damage. After the Regional Court dismissed the action by default judgment, the plaintiff lodged an objection and now relied on assigned claims of her husband, from whom she had purchased the vehicle. The Regional Court then rejected the objection and dismissed the rest of the claim, which was confirmed by the Court of Appeal.

With regard to the procedural question of interest here, the BGH ruled that the action was not inadmissible because the plaintiff had initially based her action only on her own claims and, since the statement of objection, only on those arising from assigned rights. The case law on the inadmissibility of an appeal amending an action, which merely asserts a claim that has not yet been pursued, cannot be applied to an appeal against a default judgment. It is true that an admissible objection, like an appeal, prevents the entry of substantive and formal res judicata.

However, the objection is a legal remedy of its own kind, which is intended to eliminate the detrimental consequences of a default. In this respect, it differs from an appeal. The objection has the effect of restoring the process to the position it was in before the default, to the extent of the objections, § 342 ZPO. Section 340 (2) ZPO imposes less stringent requirements on the statement of grounds than those applicable to the statement of grounds of appeal. After restoring the situation of the proceedings prior to the default, it is permissible to only submit a new claim for decision.

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