OLG Stuttgart on preference avoidance in payment under a loan agreement
The Oberlandesgericht Stuttgart (OLG Stuttgart, Higher Regional Court of Stuttgart), in its judgment of 13 May 2026 – 3 U 150/25 – ruled on the insolvency-law avoidance of a bank transfer intended to satisfy claims arising from a loan agreement. The decision is described in the source as final and binding and is published under BeckRS 2026, 14568. It is also printed in ZIP 2026, Issue 40, pp. 2487–2490.
The focus was a loan agreement which, according to the court’s findings, had been concluded in connection with the financing of a Ponzi scheme. A very high interest rate was provided for: outside capital made available for only two months was to bear interest at 50 percent. This occurred in an environment in which the base interest rate stood at -0.88 percent.
Nullity of the loan agreement due to immorality
Assessment under § 138 Abs. 1 BGB
The OLG Stuttgart reached the assessment that the loan agreement was void for immorality pursuant to § 138 Abs. 1 BGB (German Civil Code). According to the decision as reported, the decisive factors were, in particular, the financing of a Ponzi scheme and the exceptionally high interest rate on the outside capital provided for a short period.
The nullity of the agreement meant that no valid claim existed under this loan agreement. Nevertheless, for its classification under insolvency law, the decisive factor was the purpose served by the payment made from an objective perspective.
Divergent title in the ZIP publication
In the ZIP publication, the decision is listed under the title “Avoidance of a bank transfer as a preference for the satisfaction of claims arising from a loan agreement where immorality is raised as a defence”. The heading used there thus expressly refers to the defence of immorality.
The date, case number and classification as a case of insolvency avoidance or preference avoidance are also confirmed outside the original source. The case-law database dejure.org likewise lists the decision of the OLG Stuttgart of 13 May 2026 with case number 3 U 150/25 in this context.
Preference avoidance under § 131 Abs. 1 Nr. 2 InsO
Payment on a non-existent claim
According to the decision, payments on a void claim arising from such an agreement are subject to preference avoidance under § 131 Abs. 1 Nr. 2 InsO (German Insolvency Code). The performance received must be returned to the insolvency estate pursuant to § 143 Abs. 1 InsO.
The court clarified in this regard that the payment recipient may be regarded as an insolvency creditor even if the claim did not in fact exist. The prerequisite is that, from an objective perspective, the performance served to discharge a purported insolvency claim.
The decision therefore concerns, in particular, the following points of classification under insolvency law:
- nullity of a loan agreement under § 138 Abs. 1 BGB in cases of immorality,
- preference avoidance of a payment under § 131 Abs. 1 Nr. 2 InsO,
- return to the estate under § 143 Abs. 1 InsO,
- treatment of the payment recipient as an insolvency creditor where there is an objective discharge purpose.
No different assessment due to the absence of a valid claim
The fact that the underlying claim did not exist because the loan agreement was void did not preclude avoidability under insolvency law. According to the decision as reported, the decisive point was that the payment was made objectively to fulfil a purported insolvency claim.
Accordingly, preference avoidance is not linked solely to the actual existence of the claim. Rather, the decisive factor was the insolvency-law function of the payment in the relationship between the debtor and the payment recipient.
Set-off in the alternative with a damages claim
Set-off under § 389 BGB was unsuccessful
The defendant declared set-off in the alternative with a claim for damages. According to the decision, this set-off could not extinguish the claim asserted in the action pursuant to § 389 BGB.
The OLG Stuttgart based this on the fact that such a damages claim would be an insolvency claim. Set-off against the claim under § 143 Abs. 1 Satz 1 InsO is not possible under § 96 Abs. 1 Nr. 1 InsO.
Scope of the decision
The decision concerns the return of a payment to the insolvency estate where the payment was made on a purported claim arising from an immoral and therefore void loan agreement. At the same time, it addresses the question of whether a damages claim asserted in the alternative may be raised by way of set-off against the restitution claim.
According to the decision as reported, this was not the case. The claim under § 143 Abs. 1 Satz 1 InsO therefore was not extinguished by the declared set-off.
Significance for insolvency-law payment avoidance
The decision makes clear that preference avoidance does not focus only on valid claims. A payment on a claim that does not in fact exist may also be avoidable if it objectively served to satisfy a purported insolvency claim.
For companies, investors and high-net-worth individuals, this may be significant in particular in the case of short-term financings with unusual terms. The insolvency-law assessment of a payment depends on the specific circumstances of the individual case, in particular on the contractual content, the economic background and the objective discharge purpose.
Frequently asked questions
OLG Stuttgart 3 U 150/25: When is a bank transfer under a loan agreement avoidable as a preference?
According to the decision, a bank transfer may be avoidable under § 131 Abs. 1 Nr. 2 InsO if it objectively served to discharge a purported insolvency claim. This applies even if the claim did not in fact exist because the loan agreement was void.
§ 138 BGB and Ponzi scheme: Why was the loan agreement immoral according to the OLG Stuttgart?
The OLG Stuttgart regarded the loan agreement as void under § 138 Abs. 1 BGB because it was concluded to finance a Ponzi scheme and provided for an exceptionally high interest rate. In the case decided, the outside capital provided for two months was to bear interest at 50 percent.
What are the consequences of preference avoidance under § 143 InsO for companies or payment recipients?
If a payment is successfully avoided under § 131 Abs. 1 Nr. 2 InsO, it must be returned to the insolvency estate under § 143 Abs. 1 InsO. According to the decision, this may also affect payment recipients whose claim did not in fact exist, if the payment objectively served to satisfy a purported insolvency claim.
Assessment by MTR Legal Rechtsanwälte
The decision of the OLG Stuttgart shows how closely questions of validity under civil law and grounds for avoidance under insolvency law may be connected. Especially in the case of payments on loan claims, unusual interest terms or the debtor’s subsequent insolvency, a precise legal review of the relevant circumstances may be decisive. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on matters relating to insolvency avoidance, restitution claims and restructuring; further information can be found at legal advice in insolvency law.
