GERMANY: BGH on the Scope of the Right to a Fair Hearing

Aug 12, 2022 Benn-Ibler Rechtsanwälte

According to the German Federal Supreme Court (Bundesgerichtshof, BGH), the defendant's right to be heard is violated if the court of appeal awards the plaintiff more than they originally requested. It is true that in the case of a uniform matter in dispute, the individual (dependent) items may in principle be shifted in terms of their amount and, with regard to individual invoice items, may even go beyond what was sought. However, items not included in the claim were not subject matter of the dispute. The court is not permitted to take these items into account.

In the present case, the plaintiffs, as heirs, claimed damages for payments made by the deceased for work carried out by the defendant. The plaintiffs contended that the work had not been necessary and that it had been carried out in a faulty manner. The Regional Court had dismissed the action. On the plaintiffs' appeal, the Higher Regional Court upheld the claim in the amount of EUR 106,438.12 plus interest. This included the sum of EUR 23,350 to remedy the defendant's defective work on the roof, which the plaintiffs had not sought.

The court of appeal did not accept the complaint. The defendants challenged this with their appeal for non-admission.

According to the German Federal Supreme Court, the court's awarding of EUR 23,350 constituted a violation of Section 308(1) of the Code of Civil Procedure (the court being bound by the plaintiff’s motion) and thus violated the defendant's right to be heard. Thus, the case was referred back to the lower court.

In principle, courts are allowed to shift the amounts of individual (dependent) items in a uniform subject matter of the dispute and even to go beyond the claimant's claims with regard to individual items of the invoice. However, the amount awarded by the court for roof renovation was not listed by the plaintiffs in the statement of claim. The sum claimed could therefore not be considered as subject matter of the dispute. According to the Federal Supreme Court, the court's consideration thereof was therefore inadmissible.

BGH, VI ZR 304/21 (24.05.2022)