Sale by pri­va­te trea­ty on the basis of a for­war­ding agen­t’s lien — is this legal? What deb­tors should know.

Sale by pri­va­te trea­ty by the freight for­war­der — is that legal? What deb­tors should defi­ni­te­ly know!

If a deb­tor dis­co­vers that his pled­ged goods have been sold by the for­war­der by pri­va­te trea­ty, it must be che­cked whe­ther this was legal­ly com­pli­ant and what steps are pos­si­ble. In the case of the for­war­der’s or warehouse kee­per’s pledge of rights (Sec­tions 464, 475b HGB), rea­liza­ti­on is gene­ral­ly only per­mit­ted by public auc­tion; Sec­tion 1235 BGB is decisi­ve. A sale by pri­va­te trea­ty by the freight for­war­der is only pos­si­ble under cer­tain con­di­ti­ons. More on this in this artic­le and in the video.

In the case of the for­war­der’s or warehouse kee­per’s pledge of rights (Sec­tions 464, 475b HGB), rea­liza­ti­on is gene­ral­ly only per­mis­si­ble by public auc­tion; Sec­tion 1235 BGB is decisi­ve. Rea­liza­ti­on by pri­va­te trea­ty would only be per­mis­si­ble if this had been express­ly agreed. Wit­hout such an agree­ment, only the public auc­tion remains as a legal­ly com­pli­ant method of rea­liza­ti­on. In legal prac­ti­ce, the fol­lo­wing appli­es: In order to pro­tect the debtor’s pro­per­ty rights, the auc­tion must only be car­ri­ed out by a publicly appoin­ted and sworn auc­tion­eer as a neu­tral and inde­pen­dent body.

The for­war­ding agen­t’s lien or warehouse kee­per’s lien

The start­ing point is the sta­tu­to­ry for­war­der’s lien pur­su­ant to Sec­tion 464 HGB or the warehouse kee­per’s pledge of rights pur­su­ant to Sec­tion 475b HGB. The pledge of rights ari­ses at the moment the goods come into the pos­ses­si­on of the for­war­der or warehouse kee­per. In prin­ci­ple, this secu­ri­ty inte­rest allows the for­war­der or warehouse kee­per to rea­li­ze the trans­por­ted or stored goods if the­re are claims for pay­ment or reim­bur­se­ment of expen­ses due. Howe­ver, the right of rea­liza­ti­on only ari­ses as soon as the deb­tor has been legal­ly threa­ten­ed with a public auc­tion in accordance with Sec­tion 1220 BGB. The thre­at must be demons­tra­b­ly recei­ved by the com­mer­cial deb­tor and a peri­od of seven days in accordance with HGB must be obser­ved. In the case of peri­s­ha­ble goods or if post­po­ne­ment is asso­cia­ted with risk — in par­ti­cu­lar in the event of immi­nent depre­cia­ti­on or immi­nent spoi­la­ge — rea­liza­ti­on may also take place befo­re the expiry of this peri­od in order to pro­tect the pled­ge­e’s secu­ri­ty inte­rest. In addi­ti­on, the gene­ral rules of col­la­te­ral enforce­ment pur­su­ant to Sec­tions 1233–1240 BGB app­ly accor­din­gly.

The public auc­tion must be ade­qua­te­ly publi­ci­zed in accordance with Sec­tion 1237 BGB; fail­ure to do so would make the sale unlawful in accordance with Sec­tion 1243 BGB. In addi­ti­on, the deb­tor must be noti­fied sepa­ra­te­ly — in prac­ti­ce, this noti­fi­ca­ti­on is usual­ly made by the auc­tion­eer.

Admis­si­bi­li­ty of a pri­va­te sale in accordance with Sec­tion 1245 BGB “Devia­ting agree­ment”

In prac­ti­ce, freight for­war­ders’ gene­ral terms and con­di­ti­ons often con­tain clau­ses that refer to Sec­tion 1245 of the Ger­man Civil Code (BGB) and are inten­ded to grant the freight for­war­der an exten­ded admis­si­bi­li­ty of pri­va­te sale. Howe­ver, it is cru­cial that Sec­tion 1245 BGB is not dis­po­si­ti­ve in the sen­se of com­ple­te­ly under­mi­ning the other pro­tec­ti­ve pro­vi­si­ons. Even a gene­ral terms and con­di­ti­ons clau­se based on Sec­tion 1245 BGB does not chan­ge the man­da­to­ry legal requi­re­ments.

The ques­ti­on of whe­ther the sale by pri­va­te trea­ty was its­elf per­mis­si­ble is par­ti­cu­lar­ly rele­vant. A sale by pri­va­te trea­ty is only legal­ly com­pli­ant if, first­ly, it was pre­vious­ly con­trac­tual­ly agreed in accordance with Sec­tion 1245 BGB and, second­ly, if the deb­tor was infor­med pri­or to the sale and express­ly con­sen­ted to this sale, par­ti­cu­lar­ly if signi­fi­cant chan­ges have occur­red with regard to the pled­ged pro­per­ty at the time of sale, such as a decli­ne in value or chan­ges in mar­ket con­di­ti­ons. Wit­hout such con­sent, pri­va­te sale is gene­ral­ly not per­mit­ted. In addi­ti­on, the­re are strict requi­re­ments for cases in which the pled­ged pro­per­ty has a stock exch­an­ge or mar­ket pri­ce. Here, Sec­tion 1221 of the Ger­man Civil Code (BGB) cle­ar­ly sti­pu­la­tes that a sale at the stock exch­an­ge or mar­ket pri­ce may only be car­ri­ed out by a publicly appoin­ted and sworn auc­tion­eer or a com­mer­cial bro­ker. The freight for­war­der is the­r­e­fo­re not per­mit­ted to car­ry out the sale hims­elf or to set “any” mar­ket pri­ce.

Clas­si­fi­ca­ti­on if the freight for­war­der has agreed § 1245 BGB in his gene­ral terms and con­di­ti­ons

- A gene­ral terms and con­di­ti­ons clau­se may not unre­ason­ab­ly dis­ad­van­ta­ge the deb­tor (Sec­tion 307 BGB).
- The clau­se in no way replaces the legal­ly man­da­to­ry thre­at pur­su­ant to Sec­tion 1234 BGB.
- The clau­se can­not over­ri­de § 1221 BGB.
- If a stock exch­an­ge or mar­ket pri­ce is available, the sale must be car­ri­ed out by a publicly appoin­ted and sworn auc­tion­eer or a com­mer­cial bro­ker. Self-sale by the freight for­war­der is ille­gal.
- Con­tra­ry to the fre­quent misun­derstan­ding, the freight for­war­der may not deter­mi­ne the mar­ket pri­ce hims­elf or sell free­ly, even with such a gene­ral terms and con­di­ti­ons clau­se.
- A rea­liza­ti­on by pri­va­te trea­ty is still only per­mis­si­ble if the deb­tor is infor­med and express­ly cons­ents to it. A blan­ket con­sent in the GTC does not replace this spe­ci­fic con­sent.

This makes it clear that even if the freight for­war­der has agreed § 1245 BGB in his gene­ral terms and con­di­ti­ons, he may not vio­la­te the man­da­to­ry pro­tec­ti­ve pro­vi­si­ons of §§ 1233–1240 BGB, in par­ti­cu­lar § 1234 BGB and § 1221 BGB. A pri­va­te sale wit­hout obser­ving the legal requi­re­ments is gene­ral­ly unlawful and gives rise to claims for dama­ges. Gene­ral terms and con­di­ti­ons can­not over­ri­de man­da­to­ry law.

Con­nec­ted or uncon­nec­ted pledge of rights

For the legal assess­ment of the rea­liza­ti­on, it is also of cen­tral importance whe­ther a con­nec­ted or an uncon­nec­ted pledge of rights exists. This distinc­tion deter­mi­nes which claims the pled­ged pro­per­ty may be lia­ble for and whe­ther the for­war­der or warehouse kee­per is acting within the scope of his sta­tu­to­ry or con­trac­tu­al secu­ri­ty inte­rest.

A pledge of rights is con­nec­ted if the secu­red cla­im stems direct­ly from the same freight or sto­rage con­tract that rela­tes to the spe­ci­fic goods. Typi­cal examp­les are the freight remu­ne­ra­ti­on for pre­cis­e­ly this ship­ment, sto­rage cos­ts for pre­cis­e­ly the­se goods or expen­ses that are direct­ly rela­ted to this indi­vi­du­al trans­por­ta­ti­on or sto­rage tran­sac­tion. In the­se cases, the pledge of rights exists by law from the respec­ti­ve con­tract (§ 464 HGB or § 475b HGB in con­junc­tion with the pledge regu­la­ti­ons of the BGB). The con­ti­guous pledge of rights is legal­ly the most stron­gly secu­red and gene­ral­ly allows the rea­liza­ti­on accor­ding to §§ 1233–1240 BGB, pro­vi­ded that the for­mal requi­re­ments (thre­at accor­ding to § 1234 BGB, set­ting of a dead­line, pro­per exe­cu­ti­on of the rea­liza­ti­on accor­ding to § 1221 BGB) are met.

In con­trast, an uncon­nec­ted pledge of rights exists if the pled­ged pro­per­ty is also to be lia­ble for claims from other, ear­lier or com­ple­te­ly sepa­ra­te legal tran­sac­tions — i.e. for claims that do not ori­gi­na­te from exact­ly this trans­port or sto­rage con­tract. Typi­cal con­stel­la­ti­ons are older, still out­stan­ding freight or sto­rage cos­ts from pre­vious orders or com­ple­te­ly dif­fe­rent remu­ne­ra­ti­on claims against the same deb­tor. Such an uncon­nec­ted pledge of rights does not ari­se auto­ma­ti­cal­ly in freight for­war­ding and warehousing law, but only through an express con­trac­tu­al agree­ment, usual­ly in the form of gene­ral terms and con­di­ti­ons (e.g. in gene­ral for­war­ders’ terms and con­di­ti­ons).

The­se agree­ments are sub­ject to strict gene­ral terms and con­di­ti­ons con­trol in accordance with Sec­tion 307 BGB. They must be clear and com­pre­hen­si­ble and must not unre­ason­ab­ly dis­ad­van­ta­ge the deb­tor. In par­ti­cu­lar, it must be clear to the deb­tor that his cur­rent asset is also to be lia­ble for old claims from other tran­sac­tions. Non-trans­pa­rent or sur­pri­sing clau­ses are inva­lid. Fur­ther­mo­re, such an agree­ment can only extend the group of secu­red claims, but can­not chan­ge the man­da­to­ry pro­ce­du­ral requi­re­ments for col­la­te­ral enforce­ment.

Neither a con­nec­ted nor an uncon­nec­ted pledge of rights — whe­ther estab­lished by law or by con­tract — entit­les the for­war­der or warehouse kee­per to cir­cum­vent the pro­tec­ti­ve pro­vi­si­ons of §§ 1233–1240 BGB and in par­ti­cu­lar § 1234 BGB (thre­at, dead­line) and § 1221 BGB (sale at the stock exch­an­ge or mar­ket pri­ce only by publicly appoin­ted and sworn auc­tion­eers or com­mer­cial bro­kers). The con­ti­guous pledge of rights only deter­mi­nes the claims for which the pled­ged pro­per­ty is lia­ble in the “nar­rower” sen­se; the con­ti­guous pledge of rights extends this scope of lia­bi­li­ty to other claims if neces­sa­ry. The type and man­ner of rea­liza­ti­on — i.e. whe­ther public auc­tion, rea­liza­ti­on via auc­tion­eer or com­mer­cial bro­ker, thre­at and dead­lines — on the other hand, remains com­ple­te­ly deter­mi­ned by the man­da­to­ry law.

Important to know:

- If the­re is only a con­nec­ted pledge, the pled­ged goods may only be rea­li­zed for the claims spe­ci­fi­cal­ly asso­cia­ted with this tran­sac­tion.
- If the freight for­war­der invo­kes an uncon­nec­ted pledge of rights, it must be che­cked whe­ther the cor­re­spon­ding GTC clau­se is effec­tively included, trans­pa­rent and per­mis­si­ble in terms of con­tent.
- In both cases, the rea­liza­ti­on wit­hout pro­per war­ning, wit­hout obser­ving the dead­lines or wit­hout a qua­li­fied rea­liza­ti­on per­son (Sec­tion 1221 BGB) remains unlawful, regard­less of whe­ther the cla­im is con­nec­ted or uncon­nec­ted.
In prac­ti­ce, for­war­ders and warehouse kee­pers often fail to rea­li­ze that a con­trac­tu­al exten­si­on to uncon­nec­ted claims does not in any way lead to a “free hand” in the rea­liza­ti­on. The type of lien (connex/inconnex) only deter­mi­nes the scope of the secu­red claims, not com­pli­ance with the man­da­to­ry rea­liza­ti­on rules. This opens up addi­tio­nal points of attack for the deb­tor, for exam­p­le in the event of exces­si­ve invo­ca­ti­on of an uncon­nec­ted pledge of rights or unclear gene­ral terms and con­di­ti­ons clau­ses.

When is explo­ita­ti­on unlawful?

Rea­liza­ti­on is unlawful in par­ti­cu­lar if:
- no effec­ti­ve pledge of rights exis­ted,
- the invo­ca­ti­on of sec­tion 1245 BGB in gene­ral terms and con­di­ti­ons does not com­ply with the man­da­to­ry legal frame­work an alle­ged incon­se­quen­ti­al pledge of rights is based on inef­fec­ti­ve or non-trans­pa­rent gene­ral terms and con­di­ti­ons clau­ses,
- the debtor’s cur­rent and infor­med con­sent to the rea­liza­ti­on by pri­va­te trea­ty was not available,
- the thre­at of rea­liza­ti­on was miss­ing,
- the auc­tion was not publicly announ­ced in accordance with Sec­tion 1237 BGB,
- the auc­tion was not con­duc­ted by a per­son publicly appoin­ted and sworn in this field,
Sec­tion 1221 BGB was not obser­ved (sale wit­hout a publicly appoin­ted and sworn auc­tion­eer or com­mer­cial bro­ker).

In the­se cases, the deb­tor is regu­lar­ly entit­led to cla­im dama­ges in accordance with §§ 280 ff. BGB (Ger­man Civil Code). In addi­ti­on, the deb­tor can demand infor­ma­ti­on about the enti­re liqui­da­ti­on pro­cess based on Sec­tion 242 BGB (good faith). If the liqui­da­ti­on is car­ri­ed out by a duly acting, publicly appoin­ted and sworn auc­tion­eer, the deb­tor will recei­ve an auc­tion report after the liqui­da­ti­on pro­cess has been com­ple­ted in accordance with Sec­tion 1241 BGB (noti­fi­ca­ti­on of the owner). This cle­ar­ly shows how the pro­cess was car­ri­ed out and what pro­ceeds were achie­ved.

Recom­men­ded steps for the deb­tor con­cer­ned
First of all, the deb­tor should coll­ect all rele­vant docu­ments: Ship­ping docu­ments, invoices, pay­ment receipts, remin­ders, emails and any docu­men­ta­ti­on rela­ting to the reco­very. A lawy­er expe­ri­en­ced in trans­port and civil law can then check whe­ther a pledge of rights exis­ted, whe­ther the for­mal requi­re­ments were met, whe­ther it is a con­nec­ted or uncon­nec­ted pledge and what claims exist.
The deb­tor is entit­led to detail­ed infor­ma­ti­on about the pri­ce, time and pro­cess of the rea­liza­ti­on regard­less of whe­ther the rea­liza­ti­on was effec­ti­ve — becau­se this is the only way the deb­tor can com­pre­hen­si­ve­ly check his rights.

How deb­tors can avo­id simi­lar situa­tions in future

For the future, a clear, writ­ten agree­ment with the freight for­war­der on pay­ment moda­li­ties and out­stan­ding claims is recom­men­ded. Out­stan­ding freight cos­ts should be cla­ri­fied and docu­men­ted at an ear­ly stage. In the event of an immi­nent sale of the pledge, the deb­tor should express­ly point out that rea­liza­ti­on mea­su­res may only be car­ri­ed out in com­pli­ance with Sec­tions 464, 475b HGB, 1233 to 1240 BGB and Sec­tion 1221 BGB.
If rea­liza­ti­on is unavo­ida­ble, a neu­tral, public auc­tion by a publicly appoin­ted and sworn auc­tion­eer offers the grea­test pos­si­ble legal cla­ri­ty. The
knock­down acts as a final act of sove­reig­n­ty.

Spe­cial case of insol­ven­cy
If the freight for­war­der’s deb­tor beco­mes insol­vent, the­re are fur­ther lia­bi­li­ty risks due to accu­sa­ti­ons of underva­lua­ti­on: The insol­ven­cy admi­nis­tra­tor regu­lar­ly takes recour­se against the freight for­war­der if the lat­ter has pre­vious­ly sold the goods by pri­va­te trea­ty. The back­ground to this is that no objec­ti­ve mar­ket pri­ce was deter­mi­ned in the case of a pri­va­te sale. The insol­ven­cy admi­nis­tra­tor can then cla­im that the pro­ceeds achie­ved did not cor­re­spond to the actu­al mar­ket value and that the debtor’s assets were dama­ged. In addi­ti­on, the insol­ven­cy admi­nis­tra­tor regu­lar­ly recei­ves legal aid for repre­sen­ting the deb­tor in court and can the­r­e­fo­re sue all claims through to the last ins­tance wit­hout any cost risk. For the freight for­war­der, the situa­ti­on is much more one­r­ous, as he has to bear all of his own legal cos­ts. This con­stel­la­ti­on has alre­a­dy hit num­e­rous freight for­war­ders hard finan­ci­al­ly or even rui­ned them.

Sources / Legal basis

§ Sec­tion 440 HGB (car­ri­er’s lien)
Sec­tion 464 HGB (for­war­ding agen­t’s lien)
Sec­tion 475b HGB (warehouse kee­per’s lien)
Sec­tions 1233–1240 BGB (col­la­te­ral enforce­ment)
Sec­tion 1234 BGB (thre­at of col­la­te­ral enforce­ment)
Sec­tion 1237 BGB (public announce­ment)
Sec­tion 1221 BGB (stock exch­an­ge or mar­ket pri­ce; Sale only by auc­tion­eer or com­mer­cial bro­ker)
§ 1241 (Noti­fi­ca­ti­on of the owner)
§ 1245 BGB (Self-help sale under strict con­di­ti­ons)
§§ 280 ff. BGB (dama­ges)
Sec­tion 242 BGB (duty to pro­vi­de infor­ma­ti­on)
Sec­tion 307 BGB (inef­fec­ti­ve­ness of inap­pro­pria­te gene­ral terms and con­di­ti­ons clau­ses)