§ Sec­tion 391 HGB Distress sale

§ Sec­tion 391 (Duty to inspect and give noti­ce of defects, sto­rage and emer­gen­cy sale in the case of a purcha­se com­mis­si­on) HGB ( Ger­man Com­mer­cial Code )
1If a purcha­se com­mis­si­on is issued which is a com­mer­cial tran­sac­tion for both par­ties, the pro­vi­si­ons of sec­tions 377 to 379 appli­ca­ble to the buy­er shall app­ly muta­tis mut­an­dis with regard to the prin­ci­pal’s duty to inspect the goods and to noti­fy the com­mis­si­on agent of any defects dis­co­ver­ed, as well as with regard to the care for the sto­rage of the goods com­plai­ned of and to the sale in the event of immi­nent spoi­la­ge. 2The prin­ci­pal’s cla­im to assign­ment of the rights to which the com­mis­si­on agent is entit­led against the third par­ty from whom he purcha­sed the goods for the account of the prin­ci­pal shall not be affec­ted by a late noti­fi­ca­ti­on of the defect.

Auc­tion due to risk of immi­nent spoi­la­ge, reduc­tion in value or dis­pro­por­tio­na­te cos­ts

a) In the case of a com­mer­cial purcha­se
The com­mis­si­on agent may have the goods sold by public auc­tion in accordance with the pro­vi­si­ons of Sec­tion 373 HGB due to immi­nent spoi­la­ge of the goods under the con­di­ti­ons of Sec­tions 388 and 391 HGB.

The for­war­der may have the goods sold by public auc­tion in accordance with the pro­vi­si­ons of Sec­tion 373 HGB due to immi­nent spoi­la­ge of the goods under the con­di­ti­ons of Sec­tion 407 HGB.

The warehouse kee­per may have a public auc­tion held in accordance with the pro­vi­si­ons of Sec­tion 373 HGB due to immi­nent spoi­la­ge of the goods under the con­di­ti­ons of Sec­tion 417 HGB.

If the goods are at risk of spoi­la­ge, the car­ri­er may sell them at public auc­tion in accordance with the pro­vi­si­ons of § 437 HGB (Ger­man Com­mer­cial Code) and § 373 HGB (Ger­man Com­mer­cial Code).

b) in other cases
Accor­ding to Sec­tion 383 (1) sen­tence 2 BGB, the deb­tor is entit­led to sell the item owed at public auc­tion under the con­di­ti­ons of Sec­tion 372 sen­tence 2 BGB. 2 BGB, the deb­tor is entit­led to sell the debtor’s pro­per­ty at public auc­tion if it is capa­ble of being depo­si­ted but the­re is a risk of spoi­la­ge or its sto­rage would invol­ve dis­pro­por­tio­na­te cos­ts.

Accor­ding to § 1219 BGB, the pled­gee can have the pledge auc­tion­ed off in the event of immi­nent spoi­la­ge of the pledge or the risk of a signi­fi­cant reduc­tion in value (see Marx/Arens Der Auk­tio­na­tor, 2004, p. 280, 281).