The BGH has raised the requirements for intent-based contestation according to § 133 InsO. Creditors and companies are thus better protected from claims by the insolvency administrator.
One of the tasks of the insolvency administrator is to secure assets for the insolvency estate. His sharpest weapon is the insolvency contestation according to § 133 of the Insolvency Code (InsO). He demands payments back from the insolvent company if the creditor knew that the company’s insolvency was imminent and other creditors were disadvantaged by the payment. In a ruling dated May 6, 2021, the Federal Court of Justice restricted the rights of the insolvency administrator in intent-based contestation (Az. IX ZR 72/20), explains the law firm MTR Rechtsanwälte.
The BGH confirmed this case law with another ruling on February 10, 2022 (Az.: IX ZR 148/19). Accordingly, a consistently sluggish payment behavior by the debtor does not assume a later actual cessation of payments.
In the underlying case, insolvency proceedings were opened over a GmbH in 2015. The insolvency administrator of the company demanded that a freight forwarder return 36 individual payments made by the debtor between April 2014 and September 2015 under the aspect of intent-based contestation – totaling just under 53,000 euros.
Due to overdue social security contributions and tax debts, a health insurance company and the tax office had already filed for the opening of insolvency proceedings over the GmbH at the beginning of 2013. The company had admitted to the tax office that it was insolvent. The insolvency proceedings were not opened because third parties covered the GmbH’s debts, and the insolvency applications were thus withdrawn.
The defendant freight forwarder was unaware of the insolvency applications and the debts of the GmbH. It was only familiar with the GmbH’s payment behavior towards it, which had always been sluggish. Although there had been reminders, legal steps had never been initiated.
The BGH decided that the insolvency administrator could not reclaim the payments amounting to approximately 53,000 euros. It cannot be assumed that the freight forwarder was aware of the imminent insolvency of the GmbH. Such a prognosis is not possible from the consistently sluggish payment behavior of the GmbH. Especially as the payment behavior had not changed over the course of the business relationship, according to the BGH.
Experienced lawyers in insolvency law can provide advice.
