No suspension of the statute of limitations if third-party notice is incomplete

If the person giving third-party notice does not provide information on an upcoming date for proceedings, the information on the status of the dispute under Section 73 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO) is considered incomplete. The third-party notice thereby neither has the effect of suspending the statute of limitations in terms of material law nor that of procedural intervention. This is what Düsseldorf Higher Regional Court decided in its judgment of 16/05/2024 (2 U 75/23), cf. IBRRS 2024, 2416.

Statute of limitations and suspension

Sections 194f. of the German Civil Code (Bürgerliches Gesetzbuch – BGB) stipulate that claims are subject to limitation and what periods apply. The statute of limitations may also be suspended, cf. Sections 203f. BGB. The statute of limitations is suspended if the limitation period is interrupted while running. This can be by such things as negotiations under Section 203 BGB or other measures the court imposes on the parties to the dispute, but family incidents or force majeure may also lead to a suspension of the statute of limitations. And when does the suspension end? It always ends if the reason for the suspension no longer exists, such as if the suspending dispute between the parties is concluded. 

That’s the basic legal situation. In the present case, Düsseldorf Higher Regional Court defined the conditions for a suspension of the statute of limitations more narrowly.

Background and matter in hand

A third party was given notice in legal proceedings between two companies. In the letter on the third-party notice, the information about an upcoming date for proceedings was missing. The third-party notice did not have either the effect of suspending the statute of limitations or of procedural intervention because the status of the proceedings under Section 73 ZPO had been given incompletely. The claims became time-barred, and the lawyer was liable.

To secure claims against third parties, the period of limitation for these claims cannot be overlooked. This is usually achieved by notifying the third party to the dispute, which suspends the statute of limitations in respect of the claims against the third party. But this has to be done carefully because:

• only a third-party notice that is permissible has the desired effect of suspending limitation,
• and whether it is permissible is usually only checked during the recourse proceedings. 

Decision by Düsseldorf Higher Regional Court

Düsseldorf Higher Regional Court decided in its judgment on 16 May 2024 that the lack of information about a pending date for proceedings is already sufficient to result in the situation of the dispute not being adequately presented. So the conditions of Section 73 ZPO for third-party notice are not met. The third-party notice is inadmissible and does not have any effect. The statute of limitations on the claims against the party receiving the third-party notice is not suspended, and the claims become time-barred and can no longer be asserted. The lawyer is liable. 

Effect on legal practice

The decision of Frankfurt Higher Regional Court on 22 January 2022 on the need for recitals (cover sheet of the file with relevant information) for a third-party notice to be complete had already caused a stir and made lawyers take more care. Now this tendency of the courts is going even further – the admissibility of third-party notices is being tightened up with regard to their conditions. This will have far-reaching consequences because only a third-party notice that is permissible has the effect of suspending the statute of limitations.