Facts
In this case, it was about an application for provisional debt enforcement by the community of heirs of [D.] , consisting of [A.] and [B.] . The community of heirs pursued claims against [C.] from a loan agreement and a purchase contract, which originally named [D.] as the creditor.
The District Court granted provisional debt enforcement for a part of the claim, but otherwise did not proceed with the application. The High Court overturned the decision not to proceed, but rejected the application for provisional debt enforcement for the remaining amount, as the community of heirs had not proven its active legitimacy as the legal successor of [D.] .
[A.] and [B.] appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court confirmed the decision of the High Court. It stated that the community of heirs as the legal successor of [D.] would have had to prove its active legitimacy by means of documents. Since this had not been done, the application for provisional debt enforcement for the remaining amount was rightly rejected.
The Federal Supreme Court did not see an inadmissible surprise judgment or a violation of the principle of negotiation or the principle of disposition. It stated that the ex officio…