Lis pendens

Definition and legal basis:

Lis pendens refers to the state of a legal dispute that occurs when a lawsuit is filed or an application is submitted to the court. It is a central concept of procedural law and is regulated in Section 261 of the German Code of Civil Procedure (ZPO). The lis pendens begins with the service of the statement of claim on the defendant or, in the case of applications in family matters and voluntary jurisdiction, with the receipt of the application by the court. The purpose of lis pendens is to create legal certainty and avoid duplicate proceedings. It marks the formal start of court proceedings and has both procedural and substantive legal effects.

Prerequisites and occurrence of lis pendens:

The following requirements must be met for lis pendens to arise: 1. filing of an action or application
2. Service of the statement of claim on the defendant (in the case of actions)
3. Admissibility and validity of the action or application Lis pendens arises regardless of whether the action is well-founded or not. It continues to exist until the proceedings are terminated by judgment, settlement or otherwise.

Effects of lis pendens:

The lis pendens has various procedural and substantive legal consequences: Procedural effects: 1. other lis pendens (ne bis in idem): A new action in the same matter is inadmissible (Section 261 para. 3 no. 1 ZPO).
2. Perpetuatio fori: The jurisdiction of the court remains intact even in the event of subsequent changes to the circumstances giving rise to jurisdiction (Section 261 para. 3 no. 2 ZPO).
3. Binding of the parties: The parties are bound by the subject matter of the dispute and cannot change it unilaterally. Material legal effects: 1. suspension of the limitation period: The limitation period is suspended in accordance with Section 204 (1) no. 1 BGB.
2Commencement of default: In the case of monetary claims, default occurs at the latest upon lis pendens (Section 286 (1) sentence 2 BGB).
3. Interest claim: Interest can be demanded from lis pendens (Section 291 BGB).
4. Increased liability: The defendant is also liable for accidental loss of the matter in dispute from lis pendens (Sections 987 et seq. BGB).

Termination of the lis pendens:

As a rule, lis pendens ends with the legally binding termination of the proceedings. This can be done by: 1. final judgment
2. Court settlement
3. Withdrawal of the action
4. Other declarations or decisions ending the proceedings In certain cases, lis pendens can also be temporarily ended by interrupting or suspending the proceedings.

Special features and practical significance:

In practice, lis pendens is of great importance for the conduct of proceedings and the legal position of the parties. Some important aspects are 1. subject matter theory: the precise determination of the subject matter of the dispute is crucial to the issue of lis pendens and possible procedural obstacles. 2. international lis pendens: complex questions of lis pendens may arise in cross-border cases, particularly in the context of EU regulations. 3. lis pendens in different types of proceedings: The rules on lis pendens may differ in special proceedings (e.g. administrative proceedings, criminal proceedings). 4. tactical considerations: Bringing about lis pendens can be accelerated or delayed for tactical reasons in order to achieve or avoid certain legal consequences.

Current developments and challenges:

The digitalization of the judiciary and the introduction of electronic legal transactions raise new questions regarding the exact time of lis pendens. In addition, cross-border disputes and the increase in online dispute resolution proceedings pose new challenges to traditional concepts of lis pendens. Case law continues to clarify detailed questions regarding lis pendens, such as the determination of the subject matter of the dispute in complex actions or the effect of lis pendens in the event of a transfer of proceedings. In summary, lis pendens is a fundamental concept of procedural law that is of great importance both for the structuring of court proceedings and for the substantive rights of the parties. Its precise knowledge and consideration is essential for lawyers in litigation in order to optimally protect the interests of their clients and avoid procedural pitfalls.