Pledge of rights and rights of realization of the merchant pursuant to § 376 HGB Default in performance
(1) If it is stipulated that the performance of one party is to be effected exactly at a fixed time or within a fixed period, the other party may, if the performance is not effected at the fixed time or within the fixed period, rescind the contract or, if the debtor is in default, claim damages for non-performance instead of performance. He can only claim performance if he notifies the other party immediately after the expiry of the time or deadline that he insists on performance.
(2) If damages are claimed for non-performance and the goods have an exchange or market price, the difference between the purchase price and the exchange or market price at the time and place of the performance owed may be claimed.
(3) The result of a sale or purchase effected elsewhere may, if the commodities have a stock exchange or market price, be taken as the basis of the claim for damages only if the sale or purchase is effected immediately after the expiry of the stipulated time or period for performance. If the sale or purchase is not made by public auction, it must be made at the current price by a commercial broker authorized to make such sales or purchases or by a person authorized to make such sales or purchases by public auction.
(4) The provision of section 373 (4) shall apply to the sale by public auction. The creditor shall notify the debtor of the sale or purchase without delay; in the event of failure to do so he shall be liable to pay damages.
§ Section 376 of the German Commercial Code (HGB ) Default in performance in a fixed-date transaction: In the case of a fixed-date purchase, the seller or the buyer can buy or sell the goods owed at public auction in the event of default in performance by the other party to the contract in accordance with Section 376 HGB and use the difference as the basis for damages for non-performance. (Cf. Marx/Arens Der Auktionator, 2004, p. 281).
