Information on the pledge of rights of forwarders, warehouse keepers, carriers and shippers
Efficient realization of receivables through legal realization
Legal collateral enforcement is the most economically and legally advantageous method of enforcing claims. Forwarders, warehouse keepers, carriers and shippers are privileged under the German Commercial Code (HGB) and the German Civil Code (BGB): They are entitled by law to a right of lien and realization on the debtor’s goods in their possession (Sections 464, 475b, 495, 440 HGB). Our comprehensive market expertise and our extensive network of national and international buyers ensure optimum realization proceeds — far in excess of what is usually achieved by bailiffs or insolvency administrators.
Insolvency and liquidation: creditors’ rights
Insolvency administrators often urge logistics companies to include pledged items in the liquidation of assets — often via their own liquidation companies. However, they are obliged to inform the creditor in accordance with § Section 168 InsO about the time, place and price of the sale. The creditor can propose a more advantageous realization within one week, for example through a publicly appointed auctioneer.
While publicly appointed auctioneers are obliged to make the best possible sale, insolvency administrators can sell by private treaty and in a non-transparent manner — often to the detriment of creditors.
For liability reasons, managing directors are obliged to avert economic damage to the company and to secure the most financially advantageous solution. They may not accept private purchase offers at unreasonably low prices.
Advantages of the public auction
Statutory collateral enforcement eliminates the time and costs of court dunning proceedings. The creditor saves:
- Legal and court costs
- Waiting times and enforcement costs
- Advances to the court cashier and bailiff
- Own work and time expenditure
Legal advice can be useful, but is not essential.
Direct utilization according to old ADSP (until 2015)
The ADSPs in force until 2015 allowed for private sale, but entailed considerable risks:
- Unclear market price: No proven value → Potential for dispute
- Sales tax liability: Sales proceeds were subject to sales tax
- No acquisition in good faith: buyers could not acquire ownership in accordance with Section 935 (2) BGB
- Liability risks: Warranty claims were not excluded
- Delays: Judicial review of equitable deviations (§ 1246 BGB)
For this reason, the ADSP, which has been in force since 2015, once again recommends statutory collateral enforcement in accordance with the HGB and BGB.
Insolvency risks: Contestation and risk of damages
Liquidation on the open market entails considerable risks in the event of insolvency:
- Contestation by insolvency administrator for mass recovery
- Contesting the appropriateness of the proceeds → Claims for damages
- Lack of market value documentation → Liability risks for logistics providers
Alternative: Auction in accordance with § 825 ZPO
A publicly appointed auctioneer can also act in place of the bailiff in the case of enforceable claims. Advantages:
- Faster processing: bailiffs are often overloaded
- Higher revenues: Broad network of buyers — national and international
- Efficiency for the creditor: faster liquidation reduces losses
Further information: Blog post “Shipping lien law — so that the crisis does not become a catastrophe”.
We carry out:
§ Section 366 (3) HGB
(1) If a merchant sells or pledges a movable property not belonging to him in the course of his business, the provisions of the Civil Code shall apply in favor of those who derive rights from a non-entitled person even if the good faith of the acquirer concerns the authority of the seller or pledgor to dispose of the property on behalf of the owner.
(2) If the object is encumbered with the rights of a third party, the provisions of the Civil Code shall apply in favor of those who derive rights from a non-entitled party even if the good faith concerns the authority of the seller or pledgor to dispose of the object without reservation of the right.
(3) The statutory pledge of rights of the commission agent, the carrier or shipper, the forwarder and the warehouse keeper shall be equivalent to a pledge of rights acquired by contract in accordance with paragraph 1 with regard to the protection of good faith. However, sentence 1 shall not apply to the statutory pledge of rights to goods which are not the subject of the contract from which the claim to be secured by the pledge arises.
according to § 446 HGB forwarding lien
According to § 446 HGB, the freight forwarder has a legal pledge of rights to the goods, including freight, commission, expenses and use. 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)
pursuant to § 475 b HGB warehouse keeper’s lien
According to § 475 b HGB, the warehouse keeper has a legal pledge of rights to the goods due to the storage costs. 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).
Detailed information on the subject of warehouse liens can be found on our website specifically for freight forwarders and warehouse keepers: www.speditionspfandrechtsversteigerung.de
(Website currently under construction) — Contact for questions: Tel. 0827 908 9928.
§ Section 440 HGB Carrier’s lien
According to § 440 HGB, the carrier has a statutory lien on the cargo for all claims arising from the contract of carriage and customs duties as well as according to §§ 26 and 27 BinSchG in conjunction with § 440 HGB. § 440 HGB a statutory pledge of rights. 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).
Detailed information on the subject of warehouse liens can be found on our specialist website: www.speditionspfandrechtsversteigerung.de
(Website currently under construction) — Contact for questions: Tel. 0827 908 9928.
