Self-help sales

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A self-help sale or cover sale is the sale of movable property owed by the debtor .

German law

This can happen in the following cases:

or

  • when the ruin of the thing threatens

or

  • if the storage of the thing is associated with disproportionate costs.

The self-help sale can be carried out through an auction , which the creditor must be threatened with beforehand (exception: spoilage of the thing increases the risk of destruction of value).

If a market price is available, the thing can also be freely sold by a publicly authorized person.

The costs of the self-help sale are to be borne by the defaulting buyer. The creditor's claim is then based on the monetary claim from the self-help sale (str.).

The self-help sale is regulated in German law in § 383 , § 384 BGB . A similar regulation can be found for commercial purchases in Section 373 of the German Commercial Code .

If the self-help sale is carried out unlawfully, the debtor becomes according to § 280 Abs. 1, 3 i. V. m. § 283 BGB liable for damages . There is no mitigation of liability in accordance with Section 300 (1) BGB. The proceeds are then to be surrendered as a representative commodum according to § 285 BGB.

Austrian law

In contrast to German law, Austrian civil law does not recognize self-help sales.

However, the Austrian Commercial Code , which was adopted by Austria as the German Commercial Code in 1939, provides for a regulation on self-help sales.

The prerequisites for this are:

The self-help sale can take place through public auction or over-the- counter sales (e.g. through a trade broker).

The sale takes place on account of the buyer and, if properly carried out, is a substitute for performance . This means that the seller has to return the difference to the buyer in the event of higher sales proceeds through the self-help sale .