Cause of action
Under claim it is colloquially expectations, values, norms of a people acquired with respect to a thing. You are entitled to an item
A need to " claim " can be equated also mean " Verwöhntsein ".
- A demanding job, for example, associated with challenges.
- Sophisticated art requires a certain understanding ( knowledge of standards ) in order to understand them.
Another meaning is the claim to an act or omission by someone else. Meant by that is the right to be allowed to ask for something from someone.
The claim in German law
Concept and definition of claim in civil law
Dependent claim in the substantive sense, the law refers to the right of an individual ( individual right ), from another an act, such as the payment of money, to provide an explanation or the surrender of a thing or omission, such as the omission of unreasonable noise, require ( legally defined in § 194 para 1 BGB). The one who can claim the act or omission, is creditor or claimant, the one who has to provide it, is liable.
Claims are about the seller's right to require the purchaser to pay the purchase price; the right of the tenant to ask the landlord to lease the rented accommodation; the child's right to demand from his parents support; or the right of the property owner to demand from its neighbors, the omission unreasonable noise.
Claims may be directly from a law arise ( as in the case of claim for injunctive relief from noise) ( statutory rights ) or occur because creditors and debtors have agreed, in a contract so ( as in the case of claim for payment of the purchase price) ( contractual claims ). The law set from which the claim arises in a particular case, is the basis for a claim that in this case - can be both a legal provision as well as a contractual agreement - according to the above distinction.
The claim gives the claimant is not automatically the right position to which the claim is directed. For example, the tenant who has against his landlord a right to be the rented apartment, not even by the owner of the apartment, that he alone has this claim. Only when the debtor has performed the act or behavior fails to or directed the claim, ie if the landlord has the tenant's apartment actually passed, this legal position is reached, the claim in other words, is satisfied ( performance). Production by the debtor this power - possibly after a reminder - not voluntarily, the creditor may sue for this achievement. If the debtor is convicted, but this also causes it not to effect the performance, the claimant may enforce it by force.
This distinguishes the claim from the design right. The design enables the right holder has the ability to bring about a change in the law without the assistance of the victims themselves.
The design rights include the right of the lessee or the employee to terminate their tenancy or employment contract by giving notice; the right of fraudulently deceived car buyer, to challenge his purchase contract; or the consumer's right to revoke a distance selling transaction within certain time limits.
In order to enforce a design law no action is necessary. Also, a confirmation of the design right - about the " confirmation " of the termination of a student by the gym - it is not required. It is sufficient that the right-holder to the person concerned against dismissal pronounce or explain the avoidance or withdrawal. In the context of design rights, the term of the claim is fundamentally flawed; who may, for example, terminate a contract that has no " right to terminate ", but simply a right of termination.
As far as the law of civil procedure used the claim term, it understands by it not above claim in the substantive sense, but the dispute. This is because on the one hand the procedural context ( relativity of legal concepts ), on the other hand, the fact that the Code of Civil Procedure is as part of the kingdom of justice laws older than the Civil Code.
The fate of the claim
Change of people involved
If a claim once incurred, this does not mean that the people involved in it as a debtor and creditor would set immutable for the lifetime of the claim. The parties may be exchanged; other participants could join.
Thus, a claim to be transmitted, for example by assignment by a creditor to another, unless the assignment is exceptionally excluded. Conversely, can be replaced by assuming directly related liabilities of the debtors. Unlike the assignment - which is a design right - but the debt assumption is only with the consent of the other part, that is the creditor, possible.
By assumption of debt and other people may be involved in the claim on the debtor side. Recall that the creditor the benefit to which the claim is directed, but only once can require them nothing ( the addition of the transgressors and existing borrowers are generally jointly and severally liable ) but change.
Destruction and blockage of the claim
Claims may be lost over time ( go out). If the claim extinguished or under gone any other way, the creditor may do or not do, to which the claim was originally made, no longer require it. The most important event of lapse is true: If the debtor has fulfilled his performance, car buyers say for example paid the purchase price, goes out of it directed the creditor's claim. If the claim once extinguished, he does not live again. An action which is based on an extinct claim is unsuccessful.
May invalidate a claim also by the fact that creditors and debtors to pick it up by contractual arrangement that the creditors waived or the debtor explains the challenge.
Finally, the creditors may be temporarily or permanently prevented the enforcement of the claim due to contraindications rights of the debtor. For example, the debtor because of another claim, which he has his hand against the creditor, a lien is entitled.
Claims are generally non-perpetual, but are subject to the statute of limitations. After the expiry of the limitation period the claim can not be enforced by means of the action.
As a rule barred a claim within three years ( § 195 BGB), but other periods are possible. The statute of limitations generally begins to run with the financial statements in the year in which the claim arose and the creditor learned of the existence of the eligibility criteria and the identity of the debtor's knowledge ( § 199 BGB).
The limitation period may by certain measures - in particular by bringing an action or service of a judicial court order - are temporarily stopped. By agreement, the parties may settle the statute of limitations within certain limits also deviating from the statutory provisions.
Claim and action - action thinking in German law?
The claim has replaced the action ( actio ) of Roman Law in the German law. He is content limited to the substantive substrate of the Roman legal action, so the question of whether the plaintiff may ask the defendant what is desired of him by law, the defendant is therefore legally obliged to comply with the desire of the plaintiff. The action is thus for the German jurists only the means of enforcement of the substantive claim (see formal right ). The question of whether a claim is present, ie decide whether the action is well founded. The plaintiff must be substantive and creditors (see above) and the defendant as debtor ( see above) turn out, otherwise you can not be successful at trial.
The German civil law sharply divided between the substantive claim ( substantive law - such as the Civil Code) and the possibility to realize this klagweise ( Litigation - about the Code of Civil Procedure ). In some provisions of the Civil Code the claimant is still given texts which establishes the right to " complain " to something; So there it is in the old terminology " an action given " (§ 12, § 1004 BGB - " complaints " to cease and desist ). However, this must not obscure the fact that even in these rules genuine substantive claims are governed by, and will only linguistically deviated from the normal pattern. Thus, the German lawyer does not ask then whether an action, but whether a claim is given which supports the desire of the plaintiff, in other words, on what substantive claim basis ( something old-fashioned: "on which title ") of the plaintiff based his desire can.
This separation between claim and klagweiser enforcement is there especially clear where, although there is a substantive right to a particular behavior, but this claim is not sued out process for legal reasons, or it can not be enforced (so-called uncomplaining claims ).
The " claim " in other sub - fields of law
Sanction standards include both the claim of society to a just punishment for offenders (as opposed to vigilante justice ) as well as the claim of the state to prosecute the offense ( " criminal claim of the State" ).
Claims knows not only the civil law. Also, the public law recognizes the authority to require a different one act or omission, such as the right of the owner to require the building control authority issuing a building permit if public regulations do not preclude the construction project. However, the term has come to be subjective Public Law instead of the term claim in public law.