Public auction of company shares, securities, IP rights (patents, trademark rights, Internet domains, license rights).
For over 15 years, we have been assisting lawyers, insolvency administrators, financiers and investors in the realization of company shares and rights of all kinds.
The realization of pledged rights — of company shares or other rights — is carried out in a legally compliant, fast, cost-effective and final manner by the generally publicly appointed and sworn auctioneer by way of public auction (§ 383 BGB n.F., § 34b GewO, § 156 BGB). If there is a market or stock exchange value, the sale must be carried out by a commercial broker or by a person authorized to conduct public auctions in accordance with Section 1221 BGB.
The realization of pledged company shares or other rights is subject to a clear legal framework in the event of insolvency. According to §§ 1228 ff. BGB, the public auction (section 1235 BGB) is the statutory standard form — not the private sale (section 1245 BGB). When proceedings are opened, the applicability of section 1245 BGB ceases to apply: The insolvency administrator is not authorized to dispose of the property (section 80 InsO), nor is the pledger. M&A proceedings or private sales in the context of insolvency are unlawful and fraught with liability: the insolvency administrator exceeds his powers, M&A advisors act without the required auctioneer’s license and public appointment, and pledgees risk rescission or reversal (sections 129 et seq. InsO).
In its ruling of 27.11.2022 — IX ZR 145/21, the Federal Court of Justice clarified that 166 (1) InsO only applies to physical assets. Rights — such as company shares, trademarks, patents, IT domains, licenses — are not eligible for possession. This means that the insolvency administrator generally lacks a statutory power of realization; an analogous application of section 166 (1) InsO is ruled out. The realization of pledged rights is the sole responsibility of the pledgee pursuant to sections 1273 et seq. BGB in conjunction with § 1235 BGB (public auction). In the event of insolvency, the pledger is legally prevented from concluding an agreement with the pledgee on a private sale in accordance with Section 1245 BGB, as his power of disposal is transferred to the insolvency administrator in accordance with Section 80 InsO.
After the opening of insolvency proceedings, no effective agreement can therefore be concluded between the pledgee and the insolvency administrator as the representative of the pledger regarding the type of realization of pledged company shares or other rights. Consent to realization by private treaty pursuant to section 1245 BGB can no longer be granted, as the insolvency administrator has no private autonomous freedom of action (sections 80, 166 InsO). This means that the public auction (Section 1235 BGB) is the only permissible and legally compliant form of realization in the event of insolvency for pledged company shares or other rights. Any agreement deviating from this is null and void (Section 134 BGB) and can trigger liability consequences (Section 60 InsO) for the insolvency administrator and the pledgee involved.
Only the public auction combines all legal and economic objectives in one procedure.
In contrast to M&A and workouts with a two-stage process (signing and closing), the transfer of ownership takes place as soon as the bid is accepted — a sovereign, legally formative act and a clear, simple solution without a separate closing.
In transaction situations, clarity, procedural acceleration and reliability are more important than ever. Unlike workout or M&A, the public auction offers a structured, legally legitimized path to legally compliant and final realization. It combines legal precision with economic efficiency — and thus achieves what is not always possible on the market: a clear, incontestable conclusion (section 156 of the German Civil Code). In the distressed case, the classic M&A process is therefore regularly subject to the public auction both legally and economically.
Case law (BGH, judgment of 11.05.2006 — IX ZR 247/03) confirms that the public auction is a legally recognized method of sale that guarantees transparency, market fairness and finality.
The realization of company shares or other rights by way of public auction is also a useful instrument in the dissolution of communities of heirs or fractional interests as well as in the case of caducity or abandonment in order to bring about a fair solution. In the event of impending insolvency, our involvement is a proven solution for creditors.
Deutsche Pfandverwertung designs the entire procedure as a structured, legally compliant and final process. This makes the public auction a regulatory framework that offers investors and creditors a high degree of legal certainty and institutional reliability.
We act exclusively on a legal basis. Our working methods combine tried-and-tested procedural structures with online live auctions and live streams, virtual data rooms (VDR) and AI-supported processes. All processes are documented on file and can be traced in an audit-proof manner. Deutsche Pfandverwertung operates nationwide and works with international specialist partners in cross-border proceedings as required.
In more detail:
Verwertung von verpfändeten Unternehmensanteilen oder Rechten im Insolvenzfall
Verwertung von Unternehmensanteilen – Anteilsverkauf: Öffentliche Versteigerung von NewCo-Anteilen
Versteigerung von Unternehmensanteilen durch den Notar: Was Auftraggeber wissen müssen.
Pfandrechte an Geschäftsanteilen: optimiertes Verwertungsinstrument in der Forderungsrealisierung durch Anteilsverkauf
We carry out:
Auction § 65 para. 3 AktG
According to Section 65 (3) of the German Stock Corporation Act (AktG), the company must sell the shares of shareholders excluded due to non-payment of the contribution. In accordance with Section 214 AktG, the company must sell the new shares issued from shareholder funds after the capital increase that have not been collected by the shareholders after one year. In the event of a capital reduction through a consolidation of shares, the stock corporation must sell the new shares issued in place of the shares declared null and void (226 para. 3 AktG).
In all cases, the shares must be sold at the official stock exchange price through a broker. If there is no stock exchange price, the shares must be sold by public auction. (Compulsory exclusion of shareholders of a GmbH or AG.
§ Section 23 GmbHG Auction of the share
If payment of the amount in arrears cannot be obtained from legal transactions, the company may have the share sold by public auction. Any other type of sale is only permitted with the consent of the excluded shareholder.
Voluntary auction of company shares
The sale of company shares such as stocks, limited liability companies or limited partnership shares can sometimes generate better proceeds than the sale via the usual trading venues.
Debt-to-equity swap
Share deals are playing an increasingly important role. Creditors can be forced to convert their claims into shares (debt-to-equity) even against their will. As a rule, creditors have no interest in becoming shareholders. We offer the desired exit by selling the shares at auction.
Out of insolvency
There are advantages to acquiring company shares out of insolvency. The buyer then does not have to assume responsibility for the insolvent company’s existing tax obligations or other liabilities under commercial law. The sale can be arranged in such a way that all existing liabilities remain with the insolvent company.
The private sale of company shares in insolvency proceedings can also be carried out by a publicly appointed, sworn auctioneer.
The insolvency administrator must sell the company at the best possible price. If he uses the generally publicly appointed, sworn auctioneer for the sale, this is legally valid due to the surrogate principle. The insolvency administrator does not need to obtain approval from the creditors’ committee, as control is ensured by the public auction because the generally publicly appointed auctioneer is sworn to perform his task conscientiously and impartially.
Abandonment right (right to sell) § 27 GmbHG
The shareholder of a limited liability company has the right of abandonment if he is unwilling or unable to fulfill an obligation to make an unlimited additional payment. He can then release his share in the company.
Accordingly, in the event of an unlimited obligation to make additional contributions, the shareholder can exempt himself from paying the additional contribution demanded by making his share available to the company. The share must be sold by public auction
Kaduzierung § 21 GmbHG and (compulsory exclusion of shareholders of a GmbH or a § 64 AktG)
1) In the event of delayed payment, the defaulting shareholder may be issued with a new request for payment within a grace period to be determined, under threat of exclusion from the share to which payment is to be made. The request shall be sent by registered letter. The grace period must be at least one month.
(2) If the deadline expires without result, the defaulting shareholder shall be declared to have forfeited his share and the partial payments made in favor of the company. The declaration shall be made by registered letter.
(3) The excluded shareholder shall remain liable to the company for the loss suffered by the company in respect of the amount in arrears or the amounts of the capital contribution subsequently claimed on the share.
Settlement § 2042 BGB
(1) Each co-heir may demand settlement at any time, unless otherwise provided for in sections 2043 to 2045.
(2) The provisions of section 749 (2), (3) and sections 750 to 758 shall apply. Each heir may at any time demand the settlement of the community of heirs, unless the settlement is excluded in the will or there are reasons for postponing it. If the heirs fail to reach an agreement on the settlement, the community shall be dissolved by selling the common property in accordance with the provisions on the sale of pledges.
Cancellation of the entire estate § 1922 BGB
(1) Upon the death of a person (succession), their assets (inheritance) shall pass in their entirety to one or more other persons (heirs).
(2) The provisions relating to the inheritance shall apply to the share of a co-heir (inheritance share).
Pledge § 1293 BGB on bearer securities
The provisions on the pledge of rights to movable property also apply to the pledge of rights to bearer securities.
§ Section 825 — Realization of lien due to ZPO
Bailiffs work exclusively in their assigned district and have many different tasks to perform. Conducting public auctions is only a small part of their work. In practice, bailiffs refuse such an assignment — due to functional incompetence (alternatively according to § 191 No. 1 GVGA) — also with the reference that suitable publicly appointed, sworn auctioneers are available. Bailiffs may refuse without giving reasons, section 191 (1) GVGA. See also: OLG Cologne, decision 30.12.1999 — AZ: 7 VA 2/99.
It is not always possible to make the best possible use of items seized by the bailiff on the basis of a judgment at short notice. It starts with the fact that the judicial officer is not in a position to advertise the pledged object appropriately due to the requirement to keep costs. In contrast, the national and international generation of prospective buyers and the execution of collateral enforcement is clearly the core competence of the publicly appointed, sworn auctioneer. The enforcement court authorizes the auction by another person (the auctioneer) at the request of the creditor. The application must be made by the creditor.
§ Section 825 ZPO Other type of realization
(1) At the request of the creditor or the debtor, the judicial officer may realize an attached object in a manner or at a place other than that specified in the preceding paragraphs. The judicial officer must inform the defendant of the intended realization. Without the consent of the defendant, he may not realize the object before the expiry of two weeks after service of the notification.
(2) The enforcement court may order the auctioning of a seized item by a person other than the bailiff at the request of the creditor or the debtor.
Auctions according to § 825 ZPO
Pursuant to Section 825 (2) ZPO, the enforcement court may, at the creditor’s request, order that the auction of pledged items be conducted by a person other than the bailiff. The generally publicly appointed, sworn auctioneer may be appointed to conduct the auction. The purpose of section 825 (2) ZPO is, among other things, to enable the auctioning of a pledged property by the generally publicly appointed, sworn auctioneer if the auction by the bailiff cannot be expected to yield proceeds corresponding to the true value of the property.
