Public auction in the event of default of acceptance, default of performance or imminent spoilage
In commercial transactions, situations can always arise in which the performance of a contract is delayed or refused by the debtor. Particularly serious are cases of default of acceptance, default of performance or when goods are subject to imminent spoilage and thus threaten considerable economic losses.
In these cases, the public auction represents a legally secure, fast and economically efficient solution. It enables creditors to enforce their justified claims promptly without having to rely on lengthy court proceedings.
If the buyer has not taken delivery of the contractually agreed goods on time, the seller can arrange for a public auction in order to obtain compensation. This is done in accordance with the legal requirements in order to achieve an economically viable realization. If a contractually owed performance does not take place, the creditor can take measures to minimize the damage incurred. The public auction offers an effective way of realizing outstanding claims by selling the goods in question.
Preventing the threat of spoilage: A fast and legally compliant procedure is essential, especially when trading perishable goods such as food, plants or perishable raw materials. The public auction enables rapid realization before the goods become unusable and economic losses are incurred.
We carry out:
according to § 293 BGB, §§ 885a ZPO limited enforcement order + 383 BGB not depositable goods, § 373 HGB default of acceptance
Pursuant to Section 383 (1) sentence 1 BGB, the debtor may have a movable item that is not suitable for deposit auctioned off in the event of the creditor’s default of acceptance.
According to para. 1 sentence 2, he is also entitled to do so if there is a concern that the item will spoil or if its storage would involve disproportionate costs (cf. Marx/Arens Der Auktionator, 2004, p. 280).
According to § 885a ZPO (4): If the tenant-debtor does not claim his property from the creditor within a period of one month after the creditor has been instructed to take possession, the creditor may realize the property. Sections 372 to 380, 382, 383 and 385 of the German Civil Code shall apply accordingly. There shall be no threat of auction.
According to Section 373 (2) of the German Commercial Code (HGB), the seller may have the goods sold at public auction in the event of the buyer’s default of acceptance. (Cf. Marx/Arens Der Auktionator, 2004, p. 274)
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 contracting party 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).
Default pursuant to Section 1218 Rights of the pledger in the event of imminent spoilage
If the goods or rights have a stock exchange or market price, a private sale is carried out instead of an auction in accordance with Section 1221 BGB.
In the cases of Sections 65, 214 and 228 AktG, the sale is mandatory at least at the official stock exchange price. (If goods or rights do not have a stock exchange price, the sale must be carried out by public auction).
In the cases of Sections 23 and 27 GmbHG, the sale of the company share by private contract is only permitted with the consent of the excluded shareholder or the shareholder who has relinquished his share. The sale by the stockbroker, commercial broker or stockbroker is only permitted if the latter is publicly authorized to do so under state law.
In all cases of sale by private treaty, the generally publicly appointed, sworn auctioneer is authorized to do so (legal definition according to § 383 BGB).
