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Realization of a pledged item

February 5, 2010 | 25,00 EUR | answered by Steffan Schwerin

If the pledgor does not redeem the pawn item by the due date, the pawnshop is obligated to sell the pawn item through a public auction according to § 1235 of the German Civil Code.

According to § 1234 of the German Civil Code, a waiting period of 4 weeks must be observed after the right to sell has arisen, during which the pawn item cannot be sold.

On the other hand, a different method of sale than the one specified in §§ 1234 to 1240 can be agreed upon between the pledgor and the pawnshop according to § 1245 of the German Civil Code. However, § 1245 (2) explicitly states that compliance with the provisions of § 1235, § 1237 para. 1 and § 1240 may not be waived before the right to sell arises!

The question now arises whether it is possible to stipulate in the pawn ticket (even before the right to sell arises) that the pawn item may be sold after the right to sell arises, for example on ebay.de, another trading platform, or otherwise without a public auction. Or if an agreement with the pledgor can only be made separately after the right to sell arises?

Furthermore, it would need to be clarified whether in this case, a public announcement of the sale in a newspaper, as required by § 383 of the German Civil Code, would still be necessary?

I would appreciate a meaningful and well-founded answer.

Steffan Schwerin

Dear questioner,

I will answer the questions you have asked, taking into account the situation described and your commitment, as follows:

Yes, such an agreement can be made in advance.

As long as it explicitly states that the sale will only take place after the waiting period.

In this way, the mentioned regulations will not be circumvented, and in particular, the waiting period will be respected.

Such an agreement only regulates that if nothing happens during the waiting period, the object can be sold elsewhere afterwards.

Such an agreement can also be made afterwards.

In essence, the timing is insignificant, as the deadlines and procedures of the seizure will still be adhered to.

A public auction does not need to take place if the item is auctioned off on eBay.

Only if a public auction takes place, a public tender must also be carried out.

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Sincerely,

Steffan Schwerin
Lawyer

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