how legal actions can end cedure since the early 16th century.6 However, just the permissibility of a settlement in court was for a long time controversially discussed at the Imperial Chamber Court,7 which is why it inevitably plays a subordinated role within the scope of this study. Thus, the attempt at describing the outcome of a lawsuit without final judgment by calling it a declaration by an entitled party not to assert a right remains very vague. It neither explains the form in which such declaration had to be given, nor whether this declaration had any procedural or substantive effect, nor whether this declaration was ineffective or resulted in restrictions or the entire elimination of the right.8 Some of the examined files suggest that amicable dispute settlements did not only have substantive effects but also a case terminated. According to prevailing opinion, the settlement in court is of a dual nature: on the one hand, it is a judicial contract (cf. BGHZ79, 71, 74; BGHNJW1985, 1962, 1963), and on the other hand a private law contract according to sec. 779 BGB(German Civil Code). Given that procedural law does not provide for any conclusive regulation for this legal institution, but merely implies it – for instance in sec. 794 (1) No. 1ZPO(German Code of Civil Procedure) – sec. 779BGBmust be consulted additionally. A settlement in court ends the legal dispute (sec. 81, sec. 83 German Code of Civil Procedure), which is thus no longer pending within the scope of the extent of the settlement agreement. In procedural terms, it is an executory title (sec. 794 (1) No. 1ZPO); under substantive law, the settlement agreement brings about a new legal situation corresponding to its regulations. Invoking the previous legal situation is precluded. However, the settlement in court does not result in substantive legal force, which is why it does not have a restrictive effect with regard to an action for performance relating to the claim regulated under the settlement. With the withdrawal of the action (sec. 92VwGO[Rules of the Administrative Courts], sec. 269ZPO) the claimant’s claim remains valid and can again be asserted if the expectations placed in the withdrawal do not materialise. After the beginning of the oral hearing, the withdrawal of a legal action depends on the defendant’s approval, as the latter is also entitled to a judicial decision once he has been heard on the merits of the case in the oral hearing (sec. 269 (1) ZPO). In contrast to the withdrawal of the legal action, an action can no longer be brought for the same reason in case of a waiver of action, i.e. in this case the entire substantive claim is waived (sec. 306ZPO). In case of the generally mutual settlement declaration, a decision is taken only as to costs (sec. 91aZPO). Upon settlement, the plaintiff does not necessarily have to pay all costs, unlike in case of withdrawal of the action. 6 On the intense debate thereon at the turn of the 19th to the 20th century Oertmann, Paul 1895, Paul, Karl 1898 and Lehmann, Heinrich 1911. Recently on the same subject: Thomsch, Astrid 2014 who provides a summary of the development of settlements, ibid. p. 12-19 with further substantiation. 7 More details under Contribution of the Imperial Chamber Court and other institutions or persons. 8 According to Savigny, Friedrich Carl von 1824/25 p. 61, a unilateral waiver in the law of obligations does principally not have a binding effect. 78
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