Action by stages

Action by stages / Stufenklage

March 22, 2022

The purpose of the action by stages can best be illustrated by means of an example: Mr Müller instructs Ms Schmidt to buy a painting at auction on his account. This means that she is to carry out a transaction for him free of charge which is actually the sole responsibility of Mr Müller and which promotes his interests. According to section 667 BGB of the German Civil Code (BGB), Mr. Müller can demand the surrender of everything that Ms. Schmidt receives for the execution and acquires through the auction. However, if he wants to enforce this claim by means of a lawsuit, the amount of money to be paid must be precisely quantified according to section 253 (2) Code of Civil Procedure Code (ZPO). However, since he has no knowledge of the price achieved for the painting or of any other values that Ms Schmidt acquires through the auction, he must first oblige her to provide information in accordance with section 666 BGB in order to then be able to assert the claim for restitution. This is where the so-called action in stages comes into play.

Exception to the requirement of certainty and suspension of the limitation period

The action by stages is standardised in section 254 ZPO. It solves the problem that in individual cases the plaintiff cannot precisely quantify his claim without the defendant first providing information. At the same time as the action for information or rendering of accounts, an initially unspecified action for performance can be asserted. In principle, this would not be possible, as the claims of a lawsuit must be so concrete that they are enforceable. An unspecified sum of money obviously cannot be enforced. This means that Mr Müller can combine his action for information under section 666 BGB with his claim for performance under section 667 BGB. One also speaks of a level of information and a level of performance. This is an exception to the definiteness requirements under section 253 (2) ZPO.

The advantage of the action by stages is that both applications also become legally pending. This means, in particular, that the limitation period for the unquantified claim is suspended pursuant to section 204 (1) no. 1 BGB.

Information and performance level

The prerequisite on the information level is that the plaintiff can show a claim for information or rendering of accounts. Statutory claims are numerous, e.g. sections 666, 1379, 1580, 1605, 1799, 1839, 1978, 2027 or 2314 BGB. Under certain conditions, section 242 BGB can also give rise to a claim to information. This is the case if there is a special legal relationship between the parties, the nature of the legal relationship means that the entitled party cannot reasonably obtain information himself and the opponent is easily able to provide the information.

In addition, the plaintiff can oblige the defendant to make an affirmation under oath pursuant to sections 259 (2), 260 (2) BGB if there are doubts about the accuracy of the information.

At the level of performance, a claim for performance is required, which is usually directed towards payment or the surrender of certain objects. There must be a connection between the claim for information and the claim for performance in such a way that the requested information serves to quantify or otherwise substantiate the claim for performance. Both claims must also be directed against the same defendant.