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Public auctioning of movable property in forced execution

What are the situations stipulated by law that justify the public auctioning of movable property that is the object of forced execution?

According to art. 756 of the Civil Procedure Code, in the absence of an agreement between the parties or if the friendly or direct sale is not achieved, the bailiff will proceed with the sale by public auction of the seized goods.

What are the stages of a sale at public auction of movable property, object of a forced execution?

The first step in the sale at public auction of movable property is the identification and evaluation of the goods. Thus, according to art. 758 of the Civil Procedure Code, when applying the seizure, the bailiff is obliged to identify and evaluate the seized goods, except for cases where this is not possible. The assets will be valued at their movement value, related to the average market prices in the respective locality. Also, the value of the real rights of usage will be determined.

The law provides that, at the request of the interested parties or in case he can not proceed with the evaluation himself, the bailiff shall appoint an expert to fix the price for the sale of seized goods.

After the identification and evaluation of assets, the bailiff shall determine, by final judgment, the day, hour and place of the auction.

The auction will happen at the place where the goods are seized or if there are special reasons, in another place.

On the day of the sale, the bailiff will go to the place where the goods are seized, he will lift the seals or will receive the assets from the person to whom the goods were entrusted, giving the person a certificate of receipt. The executor will check the number and state of the goods, according to the seizure report.

Is there a legal obligation of advertising the sale of these goods?

Yes. According to art. 762, a bailiff will put together the advertisements for sale, which he will publish at least 5 days before the auction, at the auction location, at the seat of the bailiff, at the city hall and the execution court of the place of the sale of goods, as well as other public places. What’s more, the bailiff shall also prepare publications for sale that will be brought to the knowledge of the public by one of the local newspapers or, failing that, a national national newspapers, magazines or other publications available that are intended for sales of goods as those on sale, and on web pages with the same purpose.

Moreover, publications and announcements of sale must contain certain specific information required by law in art. 762 par. (2).

Who can participate in the auction?

According to art. 767, any person with full legal capacity and ability to acquire auctioned goods can take part in the auction. However, the debtor can’t be an adjudicator, either personally or through an intermediary. The creditors or interveners can not, either personally or through intermediaries, adjudicate the goods offered for sale at a price less than 75% of the price fixed by law.

The bailiff will notify the creditor, debtor, the third party owner of seized goods, and any person who has a right in relation to those goods, regarding the day, time and place of sale at auction, with at least 48 hours before the time fixed for the sale.

It is useful to know that the participants in the auction must certify, at the latest by the start of the auction, to the bailiff, at least 10% of auction start price for the goods they intend to buy. The creditors or interveners are not required, if they have a useful preference rank, to pay this assurance, for another reason besides covering the difference between the value of the assurance and their own debt.

How does the auction take place according to the Romanian law?

According to art. 769 of the Civil Procedure Code, the auction sale will be made publicly by the bailiff, who will offer the goods for sale by three successive shouts, and the starting bid price is the one provided in the publications and advertisements.

A good is awarded to the person who, after three successive shouts, offers the highest price, and when there is only one competitor, has offered the starting price of the auction.

If the starting price of the auction can’t be obtained, at the same time the good will again be put on sale, in which case the auction will start at a price of 75% of that provided in publications or advertisements, and the goods will be sold to the one who will offer the highest price. If this minimum price is not offered either, the auction will be postponed to another date.

The auction will close once the proceeds can cover all claims that are pursued and all enforcement costs.

Will the buyer of an adjudicated good also obtain the encumbrances on the property in question?

Not in every situation. According to art. 775, through adjudication, the buyer becomes the owner of the awarded property, free of any encumbrances, from the date of delivery, while any encumbrance will rightfully pass on the paid price, unless the adjudicator would agree for the encumbrances to be maintained or when sale was conducted under special conditions regulated by law.

However, in terms of hidden defects, the law provides that in the case of forced sale at public auction, there is no guarantee against hidden defects of the sold goods.

Can the public auction sale of movable property, object of forced execuction, be abated?

According to art. 777, in the case of a public auction sale of movable goods, object of forced execution, no request for cancellation of the sale is admissible against the third party adjudicator who paid the price, except where there was fraud on his part.

In case the winning bidder is the creditor, the sale may be canceled if there are grounds for invalidity.

The lawyers within the law firm Darie, Manea & associates are keen to offer our clients correct and relevant information and legal advice regarding the public auction sale of movable property, object to forced execution, according to the Romanian legislation. Don’t hesitate to contact one of our specialized attorneys for more information.

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