1. Court settlements, in which a claim for injunctive relief is dubbed, can in principle pursuant to § 890 Abs. 1 ZPO be provided with a pronounceable by separate court order ordering means threat (BGH, Decision of 2. 2. 2012, Wheat 2012, S. 957 ff.).
2. The Question, ob eine in einem gerichtlichen Vergleich vereinbarte Unterlassungsverpflichtung mit einer solchen Ordnungsmittelandrohung versehen werden darf, bestimmt sich danach, ob dies dem Willen der den Vergleich abschließenden Parteien entspricht. Dieser Wille ist anhand einer Auslegung des Vergleichs nach den allgemeinen Kriterien (§§ 133, 157 BGB) zu ermitteln.
Hanseatic Higher Regional Court of Hamburg 7. Civil Division, Decision of 10.06.2013, 7 In 49/13
§ 133 BGB, § 157 BGB, § 890 Abs 1 ZPO
…
The immediate appeal of the creditor against the decision of the Landgericht Hamburg from 2. More 2013, The. 324 The 173/12, is rejected.
The creditor has to bear the costs of the appeal proceedings.
The value is for the complaints procedure set at € 1.100,00.
Reasons
1
The immediate appeal, followed by the creditor of its application for an order threat agent in the event of infringement of an acquired from the debtor under a court settlement negative pledge, is admissible; but it is out of the relevant grounds of the contested decision and the Landgericht Not Remedy Decision of 28. More 2013, which follows the Senate and is incorporated herein by reference, unfounded. The creditor is rightly expect, that court settlements, in which a claim for injunctive relief is dubbed, under § 890 Abs. 1 ZPO can be provided with a pronounceable by separate judicial decision ordering means threat (BGH, Decision of 2. 2. 2012, Wheat 2012, S. 957 ff.). The Landgericht but rightly, that the question, whether agreed in a court settlement obligation omission having an atomic threat agents under § 890 Abs. 1 ZPO must be provided, is determined by,, ob dies dem Willen der den Vergleich abschließenden Parteien entspricht, and that this will reference an interpretation of the comparison according to the general criteria (§§ 133, 157 BGB) is to be determined. The objective to be detected by the receiver horizon will of the Settling Parties gives here, that the parties did not want to follow the path of the direct enforceability of the settlement just concluded. Because characterized, that the parties abschlossen a comparison relating to a proceeding on a fine means a threat containing Petition, the non-use under the possibility of agreeing on a contractual penalty in the event of infringement (§§ 241 Abs. 1 Sentence 2, 339 Sentence 2 BGB) not just a penalty clause declaration of commitment contained and in which the applicant (with the exception of court costs) the legal costs assumed, the parties have expressed, that they in the comparison with future effect a substantive, wanted to establish contractual injunctive relief and does not entitle a hinge made by the defendant as existing statutory injunctive relief. The conclusion of the settlement turned out for the applicant therefore in no way constitute a pointless; because it is now a contractual claim against the defendant for injunctive relief based on the comparison, they can be legally asserted in future infringements.
2
The decision on costs follows from § 97 Abs. 1 ZPO, the establishment of the value of the appeal is based on § 3 ZPO.