Distress sale
Under fire sale refers to the sale of assets under time pressure .
General
Anyone who wants to sell assets in the ordinary course of business sells them within a reasonable marketing period with expertise, prudence and without compulsion, the seller is ready to sell, the buyer is ready to buy ( Section 16 (3 ) PfandBG ). Only objective standards must be applied; a lover value is ruled out. Under these conditions, purchase prices customary in the market are achieved in normal business transactions . In distress sales, however, the seller is under time pressure; this increases - the closer the time horizon is - the risk of selling below a realizable market value , a book value or even below the own purchase price. The liquidity of the assets also depends on the length of the time horizon .
Legal issues
If an owed movable item is not suitable for deposit , the debtor can have it auctioned publicly at the place of performance in the event of default in acceptance and deposit the proceeds from the sale ( Section 383 BGB ). If the goods are exposed to spoilage and imminent danger , the buyer can (does not have to) have the goods not accepted sold. This emergency sale takes place according to the rules of self-help sales . The self-help sale is regularly threatened in advance to the creditor, unless this is impractical, as in the case of impending spoilage, the creditor is to be informed of the implementation ( § 384 BGB).
The market value is the price "that can be achieved at the time of the valuation on the basis of a private law contract ... between a seller willing to sell and a buyer who is not connected to him through personal relationships do not stand in the way of a proper sale and negotiation time appropriate to the importance of the object is available ”. In the absence of adequate negotiation time, this market value can usually not be achieved in an emergency sale, but a decrease in value is to be accepted.
species
The commercial law recognizes different types of emergency sale. In the case of mutual commercial purchases, there is the option of emergency sales , over-the- counter sales (if there is a stock exchange or market price ) or self-help sales . These types are also permitted if the deposit option is available ( Section 373 (2 ) HGB ). In § 379 HGB, the buyer is obliged to temporarily store the goods, but the provision also gives him the right to have the goods sold in the event of delay or perishability (emergency sale). Then the emergency sale is based on the management without an order . The lawful emergency sale takes place in the name and for the account of the seller .
The commission agent according to Section 388 (2) HGB, the carrier ( Section 419 (3) HGB) and the warehouse keeper ( Section 419 (2) HGB) have the same rights to emergency sales in the event of default in acceptance or perishable goods .
economic aspects
In a corporate crisis or personal bankruptcy , the entire can business assets or private assets be affected by distress sales to the imminent insolvency averted. The proceeds obtained here are called the liquidation value.
Other sales under time pressure, such as the realization of loan collateral ( pledge sale ) or the foreclosure sale, are economically an emergency sale.
In addition, there are other compulsory situations of a persistent, long-term nature which can trigger distress sales. If there are ethnic , religious , social , ideological conflicts or reprisals and these lead to displacement , flight or emigration , then the incentive to sell in an emergency is that fundamental , human and property rights are no longer guaranteed. During the Nazi era, for example, Jews were disenfranchised and therefore forced to sell assets for less than their value under time pressure. The emergency sales after the November pogroms , which took place under increased deadline pressure because of the imminent emigration, were taken advantage of by many Ariseurs .
For example (see special order Linz ) after the annexation of Austria, the regulation was passed there for works of art in Jewish possession that they could only be freely sold up to a price of 1000 marks; as a result, prices fell, and there was no longer any question of free sales. To this day, the reversal of these emergency sales and the return of the assets are still difficult, because they are not always verifiably recognized and recognized as such - because the provenance cannot be fully proven - and the forced sellers are no longer alive. If stolen art objects - see restitution of looted art - are increasingly returned, this does not necessarily apply to (emergency) sold objects. Final clarifications are still pending on the restitution in Austria as well as on the German reparation policy for Nazi victims .
An emergency sale can also be triggered by government intervention in the market if markets are regulated or deregulated or if they change for other reasons and a future market situation no longer appears to be assessable or markets even threaten to collapse. When the US stock market collapsed on Black Thursday of 1929 , it was also a result of distress sales, as many stock purchases were debt- financed and a fall in market values sparked a wave of distress sales.
Such emergency sales under time pressure reduce the seller's bargaining power , reduce market transparency for him and are associated with higher transaction costs . Therefore, the Goals distress sales is market price , market value , market value or vehicle market value is lower than on a disposal without time pressure.
Web links
Individual evidence
- ^ Richard Holzhammer, General Commercial Law and Securities Law , 1995, p. 173
- ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1183 f.
- ↑ Communication from the European Commission on elements of state aid in sales of buildings and land by the public sector, OJ. EC No. C 209/3 of July 10, 1997, No. II.2 a
- ↑ Anja Grethler / Wolfgang Schmitt, Business Administration for Healthcare Professionals , 2014, p. 191
- ↑ Hans Würdinger / Volker Röhricht / Dieter Brüggemann (eds.), Großkommentar HGB , Volume IV, 1970, p. 592
- ↑ RGZ 101, 19
- ↑ Hans Würdinger / Volker Röhricht / Dieter Brüggemann (eds.), Großkommentar HGB , Volume IV, 1970, § 379 Note 24
- ↑ Marlene Klatt, Uncomfortable Past: Anti-Semitism, Persecution of Jews and Reparation in Westphalia 1925-1965 , 2009, p. 175
- ↑ Theodor Brückler (Ed.), Art theft, art recovery and restitution in Austria 1938 to today , Böhlau Vienna 1999, ISBN 978-3205989264 , p. 19 ( p. 15, note 13 )
