Subsidiarity of party examination according to section 448 of the German Code of Civil Procedure

The decision of the Federal Court of Justice of 12 December 2019 (III ZR 198/18) moves the ex officio examination of parties back into the procedural focus


Part of the taking of evidence to determine the truthfulness of disputed factual claims can also be the examination of the parties ex officio pursuant to Section 448 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO). However, due to the principle of production of evidence prevailing in civil proceedings, this is only possible in a subsidiary way to the other means of evidence. In the context of constitutional law, Section 448 ZPO is particularly important in the case of private conversations.

Before a party can be examined, all the evidence offered for the fact to be proven must have been exhausted and must not have provided complete proof. The party carrying the burden of proof must have presented all reasonable witness evidence. There must be some initial evidence and a certain probability of the fact to be proven.

However, this subsidiarity does not mean that the party bearing the burden of proof must have previously filed a petition to be examined in accordance with Section 445 ZPO or Section 447 ZPO. Nor is it necessary for the party bearing the burden of proof to name a person on the side of the defendant as a witness. For it is typically unlikely to obtain evidence through the examination of a witness from the opposite camp and therefore cannot be demanded of the party bearing the burden of proof. A fortiori, it does not have to apply for the opponent's party to be examined.

As regards the substantive legal review in the successive stages of appeal and in the complaints procedure, the discretionary decision of the court as to whether a party should be examined ex officio by order of the court can only be reviewed as to whether the legal requirements were misjudged or whether the discretion was exercised in a legally incorrect manner. Accordingly, the court of appeal is bound by the facts established by the first instance pursuant to Section 529 (1) No. 1 ZPO, and thus also by the evaluation of evidence by the judge according to Section 286 ZPO.  If, however, the examination of a party in accordance with Section 448 ZPO arises to provide evidence (e.g. the court does not believe the testimony of a party or considers the testimony to be unproductive), the court must explain the reasons for refusing examination in order to avoid the accusation of discretion failure/non-use of discretion.

I. Summary of the facts

The decision of the Federal Court of Justice (BGH) of 12 December 2019 (III ZR 198/18)) was based on the following facts:

The parties were in dispute as to whether or not the Defendant had handed over to the Plaintiffs the money withdrawn during the testator's lifetime after the death of the testator. The Defendant stated that, at the request of the testator, he had handed over to Plaintiff 2 money in an envelope and two moneybags. The Plaintiffs claimed that they only received documents and no money. The witnesses, who were named by the Defendant, stated during their examination that moneybags were handed over and documents were handed over separately. Furthermore, they described how the testator had told the Defendant that money was to be withdrawn by the Defendant with his EC card during his lifetime and then kept in his own safe in order to hand it over to the Plaintiffs in the event of his death. Interestingly, the witness statements in this regard were not the subject of the regional court's order for evidence to be taken. The witnesses made statements on this issue on their own initiative during their examination. In his statement of defence, the Defendant had made substantiated submissions on the handing over of money and these submissions were disputed by the Plaintiffs. The Defendant has expressly, but in any case tacitly, confirmed the witness statements favourable to him.

II. Decisions on appeal

The Göttingen Regional Court (judgment of 12 December 2017 - case number 6 O 36/17) dismissed the action for repayment of all the amounts withdrawn and transferred. On appeal by the Plaintiffs, the Braunschweig Higher Regional Court (judgment of 23 August 2018 - case number 9 U 2/18) ordered the Defendant to pay a partial amount after set-off and dismissed the remainder of the action in so far as it concerned transfers to third parties and a partial amount withdrawn in cash. The court of appeal had considered the testimonies of the witnesses as "unproductive".

The Defendant appealed against this order for partial payment with his appeal on points of law, which was permitted by the Senate and by which he sought the restoration of the judgment of the first instance.

III. Decision of the Federal Court of Justice

The appeal on points of law resulted in the judgment of the court of appeal being lifted and the matter being referred back to the court of appeal.

The Federal Court of Justice dealt with the limited scope of review of the court of appeal to start with: The court of appeal is not bound by the facts established by the first instance if concrete evidence gives rise to doubts as to the correctness or completeness of the facts established that are relevant for the decision. Such doubts are justified, for example, if the first judge's evaluation of evidence is incomplete or incorrect with regard to facts relevant to the decision. For this purpose, a certain, not necessarily predominant probability is sufficient that a (renewed) taking of evidence will reveal the inaccuracy or incompleteness of the facts established by the court of first instance (Ball, in: Musielak/Voit, ZPO, 16 April 2019, § 529 para. 8).

In the present case, in the view of the Federal Court of Justice, the court of appeal did not sufficiently and comprehensively examine the evidence taken at first instance and incorrectly applied Section 529 (1) No. 1 ZPO. The court of appeal could have used the above-mentioned circumstantial evidence from the statements of the witnesses to logically conclude that a handover of the money had in all probability actually taken place. In addition, it should have regarded the auxiliary statements made by the witnesses as prima facie evidence and should have examined the Defendant ex officio pursuant to Section 448 ZPO. For the Defendant, who claimed that he had handed over the money in cash to the Plaintiff at the request of the testator, it was decisive for the proceedings to prove this. Only in this way would the principle of equality of arms have been respected in the present case.

It was erroneous that the court of appeal had considered the testimony of the witnesses as "unproductive", despite the prima facie evidence presented above. However, it is not possible for the court handling the appeal on a point of law to review whether the significance and weight of an evaluation of evidence was "correctly" understood in the individual case. Again, the prevailing opinion considers a review to be permitted also if general principles of experience and the requirements of prima facie evidence are misjudged.

Thus, the lower court incompletely assessed the testimonies of the witnesses, even if the question whether the Defendant's submission concerning the handing over of money was correct was not the subject of the court of first instance’s order for evidence to be taken. The court should have examined the party under Section 448 ZPO.

Dr Stephan Bausch, D.U.

Dr Stephan Bausch, D.U.
+49 221 9937 25782