Defense Right (Einrede)

Concept

A defense right (Einrede) is a counter-right that gives its holder the ability to resist an otherwise existing and valid claim, hindering its enforcement, without thereby causing the claim itself to lapse or be extinguished.

Distinction from an Objection

A defense right in the narrower legal-technical sense must be distinguished from an objection, which already calls into question the very existence or continuation of the claim itself (such as the invalidity of the contract); while an objection must be taken into account by the court of its own motion, a defense right must be actively raised by the entitled party for it to take legal effect.

Relevance in Insurance Contract Law

In insurance contract law, an insurer can, for example, raise the defense of limitation against the policyholder if a claim under the insurance contract was not asserted within the statutory limitation period, or the defense of an unperformed contract if the policyholder has failed to meet its premium payment obligation; actively raising such defenses in coverage litigation is of considerable practical importance for the insurer.