Pledge of rights and explo­ita­ti­on rights of the mer­chant

Pledge of rights and explo­ita­ti­on rights of the mer­chant

The public auc­tion enables the mer­chant to rea­li­ze due receiv­a­bles at short noti­ce, cost-effec­tively and in com­pli­ance with the law. We rea­li­ze your pledge of rights on the basis of HGB: § 369, § 371, § 373, § 376B, § 379, § 388, § 391, § 397, § 398 and § 440.

We car­ry out:

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.

(2) The right of reten­ti­on shall exist vis-à-vis a third par­ty to the ext­ent that the third par­ty can be asser­ted against the debtor’s cla­im for the return of the object.
(3) The right of reten­ti­on shall be excluded if the reten­ti­on of the object con­tra­dicts the ins­truc­tion given by the deb­tor befo­re or at the time of deli­very or the obli­ga­ti­on assu­med by the cre­di­tor to deal with the object in a cer­tain way.
(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.

§ 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).

(1) If the Buy­er is in default of accep­tance of the goods, the Sel­ler may depo­sit the goods in a public warehouse or other­wi­se in a safe man­ner at the risk and expen­se of the Buy­er.

(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).

(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).

(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.

(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.

§ 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)
If a purcha­se com­mis­si­on has been 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).

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).

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).

If the realization of collateral
is time-critical and confidential:
Contact us.

Contact us