public auction
September 11, 2011 | 50,00 EUR | answered by Jan Wilking
I purchased a vehicle at a so-called public insolvency auction.
The auction was carried out in the name of a third party and for their account. It later became clear that it was for a used car dealer.
The auction catalog explicitly stated for this vehicle:
"Decision is made under § 168 Insolvency Code."
Section 168 of the Insolvency Code states:
Notification of Intention to Sell
(1) Before the insolvency administrator sells an item, for which he is entitled to dispose under § 166, to a third party, he must notify the creditor entitled to separate satisfaction of how the item is to be sold. He must give the creditor the opportunity to point out within one week another, more advantageous way of realizing the item.
(2) If such a suggestion is made within the week or in time before the sale, the administrator must realize the suggested way of realization or treat the creditor as if he had done so.
(3) The other way of realization may also consist in the creditor taking over the item himself. A way of realization is also more advantageous if costs are saved.
I was under the impression, due to this notification in the auction catalog, that it was insolvency goods, therefore an emergency sale, and thus a particularly advantageous opportunity. In reality, however, nobody was insolvent, but the used car dealer wanted to sell his normal and defective merchandise without warranty through this trick at the public auction.
When I complained after the purchase, the car dealer told me that this was a mistake by the auctioneer and had no effect on the legality of the auction.
Is this legally correct, or is the auction and therefore my purchase void and challengeable due to this misleading information?
Dear inquirer,
I am happy to answer your inquiry taking into account your description of the situation and your commitment as follows:
Firstly, I assume that a corresponding exclusion of warranty was agreed upon within the scope of the auction, so that a withdrawal due to defects in the vehicle is likely to be excluded.
However, a rescission of the purchase contract due to error according to § 119 BGB could be considered. It should be noted, however, that the law does not consider the so-called error in motive, that is, the error in the motive for concluding the contract, to be worthy of protection. In your case, the framework conditions (especially the exclusion of warranty, "sold as seen," etc.) were likely known to you. You had only hoped to make a "bargain" due to the indication of the insolvency auction, which turned out to be incorrect in hindsight. Therefore, there is a risk that a court will only classify these disappointed expectations as an insignificant error in motive in case of dispute and therefore reject a ground for rescission.
However, there is still the option of rescission due to fraudulent deception, § 123 BGB. If it could be proven that the incorrect indication of the insolvency auction was made despite better knowledge by the dealer (or possibly also by the auction house), the contract could be reversed. Therefore, you should contact the auction house and inquire whether the error was actually caused by the auction house as claimed by the dealer, or whether the dealer may have made false statements to achieve a higher auction price (which seems much more likely). If the auction house can confirm false information from the dealer to you, I see good chances of reversing the contract.
I hope to have provided you with a helpful orientation. If you have any uncertainties, please use the free follow-up function.
Please bear in mind that I cannot give you a conclusive advice here within the scope of initial consultation without knowledge of all circumstances. If you desire a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards
