Attaching a beneficiary distribution claim: requirements and third-party debtor role

Section 5 PSG determines who is a beneficiary. The beneficiary is generally the person designated in the foundation deed. If no person is designated, the body appointed by the founder, or otherwise the foundation board, determines the beneficiary. This status decision does not by itself decide whether the foundation owes a particular payment.

A distribution claim may arise from the foundation deed, a valid resolution of the competent body or both. Its basis, recipient, amount and, where relevant, due date must be sufficiently clear. A clause that merely allows a later discretionary decision does not automatically create an immediately enforceable monetary claim.

The portal topic on beneficiary rights and information addresses a different question. Information and inspection under section 30 PSG is not a payment claim and cannot be attached without a separate analysis.

Attachment of a claim requires a claim of the debtor against a third party. Under section 294 EO, the court prohibits the third-party debtor from paying the debtor. The debtor is also prohibited from disposing of the claim. The creditor acquires a lien over the claim.

For a distribution claim, the private foundation may be the third-party debtor. The enforcement application must identify a concrete claim. A reference only to beneficiary status or to an unspecified wish for a distribution does not sufficiently identify the enforcement object.

Whether the claim has arisen depends on the deed and the resolution. A valid distribution resolution may make the position more specific. Conditions, a reservation of liquidity review or an unresolved discretion may indicate that no due claim exists yet.

The article on distribution, resolution and records explains the elements of a reliable payment decision. Enforcement requires an additional review of whether this decision has created an enforceable claim.

If a payment and disposal prohibition is served on the private foundation as potential third-party debtor, the foundation must not simply pay the beneficiary. It must review whether and to what extent the identified claim exists. That review is separate from the foundation's internal decision to make a distribution.

The foundation must not treat the prohibition as an admission that the asserted claim exists. If the basis, amount, due date or identity is disputed, the third-party debtor statement must accurately describe the position. An incorrect statement can have procedural consequences.

Section 17(2) PSG must also be observed. The foundation board may make distributions only if claims of the foundation's creditors are not diminished. This protects the foundation's creditors; it does not answer whether a personal creditor of the beneficiary can attach an existing claim.

The article on beneficiary determination and records addresses the preceding status question. The third-party debtor analysis then adds the claim basis, payment status and service of the court order.

A foundation deed may give a person a position from which distributions may later be made. That position is economically relevant but does not necessarily constitute a present monetary claim. If a body still decides freely on the occasion, amount and timing, the position may not be sufficiently specific for claim enforcement.

Recurring distributions require a review for each period. A payment fixed by the deed or by a resolution may be assessed differently from a voluntary decision for a later period. A previous payment does not automatically establish every future payment.

Conditions are particularly important. Payment may depend on an event, documents or a permitted liquidity review. Those conditions must remain visible in the application and in the third-party statement.

The portal tool on beneficiary information rights can help identify missing documents, but it does not replace review of the particular foundation deed and claim.

The creditor file should contain the enforcement title, current debt statement and documents identifying the beneficiary. The claim review also requires the effective deed, amendments, determination decisions, distribution resolutions and payment arrangements.

The private foundation additionally needs its current register position, representation rules, minutes of the competent body, payment evidence and service documents. For recurring distributions, the period of the asserted claim should be stated expressly.

Complete records also distinguish an information request from a payment claim. Section 30 PSG gives beneficiaries information and inspection rights concerning the fulfilment of the foundation purpose and certain documents. It does not mean that every requested document has monetary value or can be attached as a claim.

If several deed versions conflict, review the portal article on deed versions and disclosure before enforcement. Using the wrong version can direct the application at the wrong enforcement object.

The first mistake is equating beneficiary status with a payment claim. Section 5 PSG answers status; attachment additionally requires an existing claim against the foundation.

The second is describing the enforcement object too generally. A creditor cannot simply attach all future distributions where amount, period and event creating the claim are not determinable.

The third is confusing the third-party debtor. A personal creditor of the beneficiary targets the beneficiary's claim. A creditor of the private foundation has claims against the foundation and does not thereby become a creditor of the beneficiary.

The fourth is treating a payment prohibition as an admission. Service binds the foundation, but does not automatically prove the asserted claim or its amount.

The fifth is confusing a beneficiary distribution claim with founder rights. A beneficiary's claim and a founder's amendment or revocation right are different enforcement objects. The portal article on creditor access to founder rights addresses that separate issue.