Book2 Chapter03 Title02

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK II. Law of Obligations.

Chapter III. Extinction of Obligations.

Title II. Lodgment.

Section 372.

• A debtor may lodge for the benefit of his creditor, money, negotiable instruments and other documents and valuables in a public place designated for that purpose, if the creditor is in default of acceptance. The same rule applies if, for any other reason affecting the creditor personally, or in consequence of uncertainty concerning the identity of the creditor, not due to negligence, the debtor cannot fulfil his obligation or cannot fulfil it with safety.

Section 373.

• If the debtor is bound to perform only after the counter-performance has been effected by the creditor, he may make the right of the creditor to receive the thing lodged dependent upon counter-performance by the creditor.

Section 374.

• [I] The lodgment shall be made in the lodgment-office of the place where the performance is to be effected; if the debtor makes the lodgment in any other place, he shall compensate the creditor for any damage arising therefrom.
• [II] The debtor shall without delay notify the creditor of the lodgment; if he fails to do so he is liable for compensation. The notification may be dispensed with if it is impracticable.

Section 375.

• If the thing lodged is forwarded to the lodgment-office by mail, the lodgment operates as from the time of posting.

Section 376.

• [I] The debtor has the right to withdraw the thing lodged.
• [II] The right of withdrawal is barred:
• (1) If the debtor declares to the lodgment-office that he waives the right of withdrawal;
• (2) If the creditor declares his acceptance to the lodgment-office;
• (3) If non-appellable judgment between the creditor and the debtor declaring the lodgment legitimate is presented at the lodgment-office.

Section 377.

• [I] The right of withdrawal is not subject to judicial attachment.
• [II] If bankruptcy proceedings are instituted against the property of the debtor, the right of withdrawal cannot be exercised even by the debtor during the bankruptcy proceedings.

Section 378.

• If the right to withdraw the thing lodged is barred, the debtor is released from his obligation through the lodgment in the same manner as if he had performed his part in favour of the creditor at the time of the lodgment.

Section 379.

• [I] If the right to withdraw the thing lodged is not barred, the debtor may refer the creditor to the thing lodged.
• [II] As long as the thing is on lodgment the creditor bears the risk, and the debtor is not bound to pay interest or compensation for emoluments not drawn.
• [III] If the debtor withdraws the thing lodged, the lodgment is deemed not to have been made.

Section 380.

• In so far as a declaration of the debtor recognising the creditor's right to receive is necessary or adequate as evidence of such right according to the regulations governing the lodgment-office, the creditor may demand from the debtor the delivery of the declaration under the same conditions under which he would have been entitled to demand the performance, if the lodgment had not taken place.

Section 381.

• The costs of the lodgment shall be borne by the creditor, unless the debtor withdraws the thing lodged.

Section 382.

• The right of the creditor to the amount lodged is extinguished after the lapse of thirty years since receipt of notice of the lodgment, unless the creditor reports himself at the lodgment-office within such period; the debtor is entitled to withdraw even if he has waived the right of withdrawal.

Section 383.

• [I] If the thing owed is a moveable which is not suitable to be lodged, and if the creditor is in default, the debtor may cause it to be sold by auction at the place of performance and lodge the proceeds. The same rule applies in the cases provided for by 372, sentence 2, if the destruction of the thing is to be apprehended, or if its custody would involve disproportionate expense.
• [II] If a reasonable return is not to be expected from an auction at the place of performance, the thing shall be sold by auction in some other appropriate place.
• [III] The auction shall be held publicly by a Court officer appointed for the place of auction, or by some other official authorised to conduct auctions, or by a publicly appointed auctioneer (i.e., public auction). The time and place of the auction, with a general description of the thing, shall be publicly advertised.

Section 384.

• [I] The auction is not permissible until after the creditor has been warned of it. The warning may be dispensed with if the thing is liable to deterioration, and there is danger in delaying the auction.
• [II] The debtor shall without delay notify the creditor of the auction; if the debtor fails to do so he is liable for compensation.
• [III] The warning and the notice may be dispensed with if they are impracticable.

Section 385.

• If the thing has an exchange or market price the debtor may effect the sale by private sale at the current price through a broker publicly empowered to conduct such sales, or through a person authorised to conduct public auctions.

Section 386.

• The costs of the auction or of the sale made under 385 shall be borne by the creditor, unless the debtor withdraws the proceeds lodged.