Third party notice

Third party notice / Streitverkündigung

June 25, 2024

The third-party notice is an instrument in civil proceedings that allows the parties to the proceedings to include third parties in the effect of the expected judgement. In principle, the court decision in a case only has effect between the parties, i.e. the plaintiff and the defendant* (res judicata). This is different in the case of so-called intervening parties: The intervening party (or intervener) participates in the proceedings of the other parties in their own name and supports one of the parties because they have a legal interest in this party winning. The effect of the intervening party pursuant to Section 68 of the German Code of Civil Procedure (ZPO) means that in any subsequent proceedings between the intervening party and the party it is supporting, both parties are bound by the content of the judgement in the first proceedings. This effect also occurs on the basis of a third-party notice, Section 74 ZPO, irrespective of whether the party served with the notice joins the proceedings as an intervening party.

Legal grounds

The third-party notice is regulated in sections 72 to 74 ZPO. They contain provisions on the prerequisites and formal requirements for a third-party notice and its effect.

Legal requirements

According to Section 72 ZPO, a third-party notice is admissible if one of the parties to the proceedings believes that it has a claim against a third party not involved in the proceedings or if such a third party could have a claim against the party if it loses the current proceedings. This could be, for example, claims arising from defective performance or a right of recourse. If a tradesman installs a defective component, for example, he can take legal action against his customer, because he has a right of recourse against the manufacturer if the component was defective. It depends solely on the point of view of the person announcing the dispute, not whether the claim actually exists.

The claim asserted in the current proceedings and the claim that the notifying party believes it has or fears it has against itself must be mutually exclusive.

The third-party notice is also admissible if there is an alternative relationship between the party involved and the third party, i.e. the plaintiff knows that he has a claim against either the defendant or the third party and wants to ensure that if he loses against the defendant, the third party is bound by the content of the first judgement. A so-called double third-party notice is also possible, i.e. a further third-party notice against the same third party by the other party - but even then the third party can only join one party. The third party can also announce the dispute to another party themselves, Section 72 (3) ZPO, even if they do not intervene - this is possible until the decision becomes formally final (as soon as an appeal is no longer admissible).

The admissibility of the third-party notice will only be reviewed by the court in any subsequent proceedings between the third-party notice and the third party.

Procedure

The dispute is announced by means of a statement submitted by the party to the court, which serves it on the third party. This third-party notice must contain the reason for the third-party notice and a description of the status of the proceedings.

The reason for the third-party notice must be a detailed description of the facts of the case which, in the view of the party filing the third-party notice, fulfil the above requirements, i.e. the legal relationship with the third party from which the claim of the party or the third party against the party arises. With regard to the situation of the legal dispute, the course of the proceedings to date and the subject matter of the dispute must be set out. These statements must be sufficient to enable the third party to decide whether to join as an intervener.

The basic requirements of Section 130 (1) ZPO must be observed, i.e. the pleading must contain details of the parties and their representatives. The notice of intervention may not be made subject to a condition.

Legal effect

Once the third party has received the third-party notice, they are referred to as the third-party notice holder and have the choice of whether or not they wish to join the proceedings as an intervening party (including the non-disputing party). If he joins, he assumes the status of an intervener or intervener pursuant to sections 66 et seq. ZPO and he can actively support the party he has joined. If he does not join, the intervening effect of Section 68 ZPO also applies to any subsequent proceedings, but the party who announced the dispute remains completely uninvolved in the current proceedings so that he cannot influence the outcome.