Self-help sales
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:
- if the creditor in default of acceptance , and the items are not suitable for deposit
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:
- Trading business
- Default of acceptance by the buyer
- prior threat
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 .