Originally from Attachment of Assets

1.   What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained ("attachments")? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?

German law provides for attachment orders that can be used to freeze assets. A bank account, for example, can be frozen by way of an order which forbids the bank to effect any payments to die defendant. Moveable assets may be put in the custody of a bailiff. In the case of real estate, a mortgage (Zwangssicherung-shypothek) may be entered into the Land Register to provisional­ly secure the plaintiffs claim. The same applies for ships and aircraft, for those, separate registers are kept.

2.   What is the form of the attachment? Injunction? Other kind of judicial order? Specify.

Provisional relief pursuant to Sec. 916 - 945 German Code of Civil Procedure (hereinafter: ZPO) is available to the plaintiff either as in the form of an attachment (Arrest) or in the form of an interlocutory injunction (Einstweilige Verfugung). The basic distinction between the two is the following: An attachment is to secure future execution to satisfy a claim for a liquidated amount of money or a claim which may be converted into a monetary claim, whereas the injunction serves to satisfy the future enforcement of non-monetary claims.

In addition, injunctions may take the form of a provisional arrangement (Regelungsverfugung, Sec. 940 ZPO) or as an injunction ordering provisionally the performance of the debt which the plaintiff alleges is owed to him (Leistungsverfugung).

Thus, if a plaintiff seeks to secure e.g. a right in rem, he might seek an injunction, under which that asset is attached and is ordered to be placed in custody of a bailiff (Gerichtsvollzieher als Sequestor). The provisions on attachment orders also apply to injunctions, with some minor modifications (Sec. 936 ZPO).

In addition, Sec. 918 ZPO provides for the ordering of a body attachment, i.e., of the arrest of the defendant himself (perso nlicher Arrest). This measure may only be ordered by the Court if it is the only means to safeguard the future enforcement of a judgment. This requires that an attachment of assets is insuffi­cient. In implementing such an order, the defendant may either be arrested or restrictions of free movement may be ordered, such as surrendering the passport etc. (Sec. 933 ZPO). In this report, the body attachment will not be discussed any further.