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Pledge of rights and exploitation rights of the merchant
The statutory and contractual pledge of rights is a central instrument for merchants to secure and enforce their claims. By realizing the pledged goods, the merchant can realize due claims quickly, cost-effectively and in accordance with the law without having to rely on lengthy legal proceedings.
The public auction (Sections 383, 385 BGB in conjunction with Sections 369 et seq. HGB) for the realization of collateral offers merchants the opportunity to enforce their secured claims efficiently and in a value-preserving manner. A key feature of the public auction is the legally compliant, transparent and economically optimized implementation of the realization, in particular by publicly appointed, sworn auctioneers in accordance with the amendment to Section 383 BGB as of 01.01.2025.
This saves the creditor both time-consuming and cost-intensive dunning and legal proceedings as well as the commissioning of a bailiff who, in accordance with Section 191 (1) GVGA, may reject the realization without giving reasons — which regularly happens in complex proceedings — and can only act locally in his district. The creditor therefore benefits from a considerable time and cost advantage compared to most other creditors.
We assume the realization of collateral within the scope of the following pledges of rights under commercial law: § 369, § 371, § 373, § 376B, § 379, § 388, § 391, § 397, § 398 HGB.
Advantages of the realization of liens:
- No legal costs for dunning and legal proceedings
- No enforcement costs
- Fixed auction date that cannot be postponed
- Trigger for the debtor’s higher willingness to pay
- Short-term implementation
- Low loss in value of the seized goods due to prompt sale
- Higher proceeds compared to realization by the insolvency administrator
- Short-term clearing of blocked storage areas
We carry out realizations for merchants
Legally compliant procedure
Identification and selection
Commercial expertise in generating suitable prospective buyers, nationally and internationally, for higher sales proceeds
Pool of prospective buyers
Maximum legal certainty
Many years of experience
Time and cost savings
No time-consuming and cost-intensive dunning and legal proceedings necessary.
We perform due to:
Pledge of rights and exploitation rights of the merchant
The public auction enables the merchant to realize due claims at short notice, cost-effectively and in compliance with the law. We realize your pledges of rights and conduct public auctions in accordance with HGB § 369, § 371, § 373, § 376B, § 379, § 388, § 391, § 397, § 398 and § 440.
Pledge of rights and rights of realization of the merchant pursuant to § 369 HGB Right of retention
In the case of mutual commercial transactions, Section 369 HGB allows the merchant a lien-like right of satisfaction on goods or securities against the other party to the contract. In the event of insolvency, Section 51 No. 3 InsO allows the commercial right of retention the right to separate satisfaction.
§ Section 369 HGB
1) A merchant has a right of retention to the movable goods and securities of the debtor which have come into his possession with his will on the basis of commercial transactions, insofar as he still has them in his possession, in particular can dispose of them by means of bills of lading, consignment bills or warehouse receipts, due to the claims due to him against another merchant from the mutual commercial transactions concluded between them. The right of retention is also justified if ownership of the object has been transferred from the debtor to the creditor or has been transferred from a third party to the creditor on behalf of the debtor but has been transferred back to the debtor.
(4) The debtor may avert the exercise of the right of retention by providing security. The provision of security by guarantors is excluded.
§ Section 371 HGB
(1) The creditor is authorized by virtue of the right of retention to satisfy his claim from the retained object. If a third party has a right to the object against which the right of retention can be asserted pursuant to section 369 (2), the creditor shall have priority with regard to satisfaction from the object.
(2) Satisfaction shall be effected in accordance with the provisions of the German Civil Code applicable to the pledge of rights. The period of one month specified in section 1234 of the Civil Code shall be replaced by a period of one week.
(3) If satisfaction does not take place by way of compulsory enforcement, it shall be admissible only after the creditor has obtained an enforceable title for his right to satisfaction against the owner or, if the object belongs to him, against the debtor; in the latter case, the provisions of the Civil Code relating to the owner on satisfaction shall apply mutatis mutandis to the debtor. In the absence of an enforceable title, the sale of the object is not lawful.
(4) The action for permission to satisfy the claim may be brought before the court in whose district the creditor has his general place of jurisdiction or the place of jurisdiction of his place of business.
Pledge of rights and rights of realization of the merchant pursuant to § 371 HGB Right of satisfaction
§ Section 371 HGB
(1) The creditor is authorized by virtue of the right of retention to satisfy his claim from the retained object. If a third party has a right to the object against which the right of retention can be asserted pursuant to section 369 (2), the creditor shall have priority with regard to satisfaction from the object.
(2) Satisfaction shall be effected in accordance with the provisions of the German Civil Code applicable to the pledge of rights. The period of one month specified in section 1234 of the Civil Code shall be replaced by a period of one week.
(3) If satisfaction does not take place by way of compulsory enforcement, it shall be admissible only after the creditor has obtained an enforceable title for his right to satisfaction against the owner or, if the object belongs to him, against the debtor; in the latter case, the provisions of the Civil Code relating to the owner on satisfaction shall apply mutatis mutandis to the debtor. In the absence of an enforceable title, the sale of the object is not lawful.
(4) The action for permission to satisfy the claim may be brought before the court in whose district the creditor has his general place of jurisdiction or the place of jurisdiction of his place of business.
According to § 397 HGB, the commission agent has a statutory pledge of rights from the goods on commission, including the costs, advances and commissions used on the goods. The prerequisite for this is that he is in possession of the goods, in particular that he can dispose of them by means of bills of lading, consignment bills or warehouse receipts (see Marx/Arens Der Auktionator, 2004, p. 274).
(2) He is further authorized, after prior warning, to have the goods sold by public auction; if the goods have a stock exchange or market price, he may, after prior warning, also effect the sale by private treaty through a commercial broker publicly authorized to make such sales or through a person authorized to sell at public auction at the current price. 2Ifthe goods are at risk of spoilage and there is imminent danger, no prior threat is required; the same applies if the threat is impracticable for other reasons.
(3) The self-help sale is made for the account of the defaulting buyer.
(4) The seller and the buyer may bid at the public auction.
(5) 1Inthe case of a public auction, the seller must notify the buyer in advance of the time and place of the auction; he must inform the buyer immediately of the completed sale for each type of sale. 2Inthe event of failure to do so, he shall be liable for damages. 3Thenotifications may be omitted if they are impractical (see Marx/Arens Der Auktionator, 2004, p. 274).
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.
§ 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).
Pledge of rights and rights of realization of the merchant pursuant to Section 379 HGB Temporary storage; distress sale
(1) If the purchase is a commercial transaction for both parties, the buyer is obliged, if he complains about the goods sent to him from another place, to ensure their temporary storage.
(2) If the goods are exposed to spoilage and there is imminent danger, he may have them sold subject to the provisions of section 373.
§ 388 HGB Defective goods on commission
(1) If the goods sent to the commission agent are in a damaged or defective condition upon delivery, which is externally recognizable, the commission agent shall safeguard the rights against the carrier or shipper, provide evidence of the condition and notify the principal without delay; in the event of failure to do so, he shall be liable for damages.
(2) If the goods are subject to deterioration or if changes subsequently occur in the goods which give rise to fears of their depreciation, and if there is no time to obtain the order of the principal, or if the principal defaults in issuing the order, the commission agent may effect the sale of the goods in accordance with the provisions of section 373.
Pledge of rights and realization rights of the merchant according to § 391 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).
Pledge of rights and realization rights of the merchant according to § 397 Commissíonärspfandrecht
According to § 397 HGB, the commission agent has a statutory pledge of rights from the goods on commission, including the costs, advances and commissions used on the goods. The prerequisite for this is that he is in possession of the goods, in particular that he can dispose of them by means of bills of lading, consignment bills or warehouse receipts
(Cf. Marx/Arens Der Auktionator, 2004, p. 274).
Pledge of rights and rights of realization of the merchant pursuant to § 398 Pledge of rights of the purchasing commission agent
According to § 398 HGB, the purchasing commission agent who has not yet transferred the goods on commission to the principal, i.e. is not the owner, can satisfy the claims mentioned in § 397 HGB by way of a sale by pledge (cf. Marx/Arens Der Auktionator, 2004, p. 274).
Questions about:
Manageable costs
We are obliged to carry out the valuation and realization at reasonable costs, taking into account the rights of all parties involved. The amount is based on the type of pledge and the effort required to achieve adequate realization proceeds in the interests of the debtor. As remuneration for his expenses and activities, the auctioneer receives a lump sum from the client and a so-called premium on the hammer price from the buyers. In order to avoid any accusation of squandering, the pledge should be advertised in an appropriate form. The greater the demand for the pledged item, the lower the flat fee.
Important to know: The debtor bears the costs of the proceedings. Unrealizable costs can be claimed as expenses for tax purposes by the creditor.
The Auctioneer shall have unlimited and personal liability for culpable breaches of duty. The client cannot release the auctioneer from this liability for damages. The auctioneer’s remuneration is therefore always also a liability remuneration.
Quick guide for merchants
Realization of liens in the event of distress/insolvency
Immediate situation picture
- Pledges of rights typically arise by law or by contract, e.g:
- - Commercial right of retention/pledge of rights to goods/documents handed over for outstanding claims from mutual commercial transactions (§§ 369 ff. HGB).
- - contractual pledges of rights (security agreements, general terms and conditions pledges).
- - Industry-specific pledges of rights (warehouse keeper/forwarder/works contractor/landlord as special cases).
- Core requirement almost always: direct possession of the goods/item.
- Objective: Realize receivables quickly, cost-effectively and in compliance with the law without dunning/complaint/enforcement proceedings.
Decisive in practice (priority = possession + maturity)
- The customer shall not surrender the pledged property as long as the secured claim is outstanding and due.
- Surrender “as a gesture of goodwill” regularly leads to the loss of the lien position.
- Check and document immediately:
- - which claims are secured (principal and ancillary claims).
- - which specific items are covered.
- - whether grounds for exclusion apply (e.g. third-party property, non-seizability, retention of title by third parties).
Do’s — concrete roadmap
- Determine pledge situation internally: Inventory list (item, serial no., condition, location), clarify ownership situation, list of receivables with due date/interest/ancillary claims.
- Inform the debtor or (provisional) insolvency administrator in writing: Reference to the pledge of rights, designation of the pledged property, amount of the claim, short deadline for payment or consent to realization.
- Initiate realization: public auction is the rule for collateral enforcement (§§ 1228 ff., 1235 BGB); commission a publicly appointed, sworn auctioneer.
- Immediately prioritize time-critical or depreciating goods (seasonal, technical, perishable goods); present recovery plan with deadline and expected proceeds.
- Secure audit trail: complete documentation of the recycling process.
Don’ts — typical liability traps
- No quick sale by private treaty without a legal basis or effective realization agreement.
- No M&A/bidding procedure as a substitute for a statutory auction.
- No utilization of third-party property without prior clarification.
- No unauthorized destruction/disposal solely due to storage costs.
Insolvency of the debtor — what changes
- Claims up to the opening = insolvency claims → register in the table.
- Pledges of rights retain their value (segregation).
- The right of exploitation depends on possession:
- - Pledged property in the possession of the merchant → independent collateral enforcement possible according to BGB rules.
- - Pledged property in the possession of the insolvency administrator → administrator realizes; payment to the merchant from the proceeds after contribution to costs.
- Blockade by administrator: prove better alternative realization, set deadline, then involve insolvency court/creditor committee.
How we typically support
- Pledge realization appraisal / quick valuation for revenue and interest argumentation.
- Legally compliant public auction by publicly appointed, sworn auctioneer (also online/live).
- Fire sale capability: short-term buyer activation to secure the maximum price and quick clearance.
Important for your actions
A merchant’s pledge of rights is a quick way of realizing a claim — but only if possession is held, ownership is properly checked and publicly exploited in accordance with the law.
