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- Lis pendens is the state of a legal dispute that occurs when a lawsuit is filed or an application is made.
- Lis pendens commences upon service of the statement of claim or receipt of the application by the court.
- The requirements include the filing of an action, service and admissibility of the action or application.
- Procedural effects include ne bis in idem and perpetuatio fori in accordance with the ZPO.
- Substantive legal effects include suspension of the statute of limitations and immediate interest claim.
- Lis pendens ends with a final judgment, settlement or withdrawal of the claim.
- Digitalization and cross-border disputes pose new challenges for 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 legal 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 occur:
1. bringing an action or filing an 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
The lis pendens occurs regardless of whether the action is well-founded or not. It continues until the proceedings are terminated by judgment, settlement or otherwise.
Effects of lis pendens:
The lis pendens has various procedural and substantive legal consequences:
Process-related 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.
2. commencement 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: From lis pendens, procedural interest can be demanded (section 291 BGB).
4. aggravation of liability: From lis pendens, the defendant is also liable for accidental loss of the matter in dispute (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 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 decisive for the question of lis pendens and possible procedural obstacles.
2. international lis pendens: In cross-border cases, complex questions of lis pendens may arise, 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: The lis pendens process 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 repeatedly clarifies 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.
