Attachment of Future Claims in Insolvency Proceedings
By judgment of 15 July 2026 – 7 U 71/25, the OLG Brandenburg (Brandenburg Higher Regional Court, Oberlandesgericht) ruled on the insolvency-law treatment of an attachment relating to a claim that would only arise at a later date. The decision has been discussed, among other places, in NJW-Spezial 2026, 663 and was also analysed in the DStR-aktuell supplement to DStR 38/2026 from the perspective of the lack of insolvency-proof status of an attachment of future claims. The date and case number of the decision can also be verified via a freely accessible case-law overview.
At its core, the case concerned the question of whether an attaching creditor acquires a secured legal position in insolvency proceedings if the attached claim only comes into existence upon the opening of insolvency proceedings. The OLG Brandenburg answered this in the negative, referring to §§ 88, 91 InsO (German Insolvency Code).
Background to the Legal Dispute
Limited Partnership Interest of the Debtor
The claimant was the insolvency administrator. The debtor operated a sole proprietorship and, since 2015, had no longer been able to meet his tax liabilities owed to the defendant. At the same time, he held a limited partnership interest in a company through a trustee.
Under the partnership agreement, this interest could be terminated at the earliest as of 31 December 2020. The partnership agreement also provided that a partner would withdraw from the company if insolvency proceedings were opened over his assets. In the event of withdrawal, the partner was entitled to a settlement balance.
Attachment by the Tax Office and Opening of Insolvency Proceedings
In 2017, the Finanzamt attached all rights arising from the interest. In 2018, it declared the termination of the partnership agreement. On 2 July 2019, insolvency proceedings were opened; at that point, the debtor withdrew from the company.
The company deposited the settlement balance with the court. The claimant sought the defendant tax office’s consent to the release of the deposited amount. The claimant succeeded with this request.
Claim for Consent to Release the Deposited Amount
Legal Basis under § 812 para. 1 sentence 1 alternative 2 BGB
According to the decision of the OLG Brandenburg, the claimant was entitled to demand consent to the release of the deposited amount under § 812 para. 1 sentence 1 alternative 2 BGB (German Civil Code). If an amount has been deposited and several persons claim to be entitled to it, the true entitled party may demand that the other claimants make the required declaration if they obtained their legal position at his expense.
The existence of this claim does not depend on the internal relationship between the claimants. Rather, the decisive factor is solely the substantive legal relationship between the depositing debtor and the claimant.
No Insolvency-Proof Legal Position of the Defendant
The claimant, as insolvency administrator, was entitled to payment because the defendant did not hold any insolvency-proof attachment lien in the payout amount. The decisive point was that the attached claim had not already arisen when the attachment was effected in 2017.
Under § 91 para. 1 InsO, rights in assets forming part of the insolvency estate cannot be validly acquired after the opening of insolvency proceedings. It is true that the attachment and collection order had already been served on the third-party debtor in 2017. However, insofar as the attachment concerns a future claim, the lien arises only when that claim comes into existence.
Creation of the Attached Claim
Payout Claim as a Future Claim
According to the decision of the OLG Brandenburg, the attached payout claim was a future claim. This was not altered by the termination declared in 2018. Under the partnership agreement, termination was possible at the earliest as of 31 December 2020.
Only at that point could the claim for payment of the settlement balance have arisen, and only subject to the debtor not having previously withdrawn from the company for another reason. Such another reason occurred here: with the opening of the insolvency proceedings on 2 July 2019, the debtor withdrew from the company.
The relevant chronological milestones were therefore:
– attachment of all rights arising from the interest in 2017, – declaration of termination by the Finanzamt in 2018, – opening of insolvency proceedings and withdrawal of the debtor on 2 July 2019, – earliest possible termination date under the partnership agreement on 31 December 2020.
Creation Only upon Opening of Insolvency Proceedings
The claim therefore did not arise as early as the time of the attachment in 2017. Rather, it arose only upon the debtor’s withdrawal on 2 July 2019 and thus upon the opening of insolvency proceedings.
For this reason, § 91 InsO precluded the defendant from acquiring a secured legal position in the insolvency proceedings. The defendant was therefore unable to invoke, as against the insolvency administrator, an insolvency-proof attachment lien in the deposited payout amount.
No Previously Secured Legal Position
Standard for a Secured Legal Position
The OLG Brandenburg also took the view that, prior to the opening of insolvency proceedings, no secured legal position in the attached claim had arisen that could have withstood the prohibition on acquisition under § 91 InsO.
According to the standard applied, a legal position is secured if the assignor and the attachment debtor can no longer eliminate it without the consent of the assignee or the attachment lien creditor. The court did not consider this requirement to be met here.
Uncertainty Despite Declaration of Termination
The declaration of termination did not make it sufficiently certain that a claim for payment of the settlement balance would arise in the future. This was because the partnership agreement also contained further grounds for withdrawal.
In particular, it provided that a partner would also withdraw from the company if insolvency proceedings were opened over his assets. This is precisely what happened. Accordingly, the defendant could not already claim, prior to the opening of the proceedings, to have a secured legal position in the later payout claim.
Classification of the Decision
The decision confirms that an attachment lien in a future claim is created only when that claim comes into existence. For the insolvency-law assessment, the timing of service of the attachment and collection order is therefore not the only relevant factor.
In insolvency avoidance law as well, future claims must be assessed by reference to the point in time at which they arise. In the case decided, the provisions of the partnership agreement showed that the debtor’s claim to the settlement balance arose, at the earliest, upon the opening of insolvency proceedings over his assets.
It should be noted that, in other constellations, it may be conceivable that the attachment lien creditor already has a secured legal position at that point. The decision therefore concerns the specific structure of the interest, the attachment and the provisions of the partnership agreement in the case decided.
Frequently Asked Questions
OLG Brandenburg 7 U 71/25 attachment of future claims insolvency what was decided?
The OLG Brandenburg held that the attaching creditor does not acquire a secured legal position in insolvency proceedings if the attached future claim only arises upon the opening of insolvency proceedings. The decisive provisions were §§ 88, 91 InsO.
§ 91 InsO attachment of future claims when does the attachment lien arise?
In the case of a future claim, the attachment lien arises only when the claim comes into existence. If the claim is created only upon the opening of insolvency proceedings, § 91 para. 1 InsO prevents the valid acquisition of a right in an asset of the estate.
OLG Brandenburg settlement balance limited partnership interest practical consequences for companies?
The decision shows that, where settlement balances are governed by a partnership agreement, the precise point in time at which the claim arises can be decisive. For companies and stakeholders, this can have considerable significance in relation to deposits with the court, attachments and insolvency proceedings when allocating the payout amount.
Classification for Insolvency-Law Issues
The decision of the OLG Brandenburg illustrates how closely attachment law, company law and insolvency law can interact when claims arising from participations only come into existence at a later date. Particularly in the case of future claims, the insolvency-law allocation regularly depends on the specific creation of the claim and the underlying contractual provisions.
MTR Legal Rechtsanwälte advises companies, investors and high-net-worth private individuals on issues at the interface of debt enforcement, insolvency and corporate participations; further information can be found under legal advice in insolvency law.
