The Federal Court of Justice has raised the requirements for intent-based avoidance according to § 133 of the Insolvency Act. Creditors and companies are thereby better protected from claims by the insolvency administrator.
The responsibilities of the insolvency administrator include securing assets for the insolvency estate. His most potent weapon in this regard is insolvency avoidance according to § 133 of the Insolvency Act. Thereafter, he demands repayments from the insolvent company if the creditor knew that insolvency of the company was imminent and other creditors were disadvantaged by the payment. With the judgment of May 6, 2021, the Federal Court of Justice limited the rights of the insolvency administrator in cases of intent-based avoidance (Case No. IX ZR 72/20), explained the commercial law firm MTR Rechtsanwälte.
This case law was confirmed by the Federal Court of Justice with another judgment on February 10, 2022 (Case No.: IX ZR 148/19). Accordingly, a consistently slow payment behavior by the debtor does not suggest a subsequent cessation of payments.
In the underlying case, insolvency proceedings were opened in 2015 over a GmbH. The insolvency administrator of the company demanded the return of 36 individual payments from a freight forwarding company under the aspect of intent-based avoidance, which the debtor had made between April 2014 and September 2015 – amounting to a total of nearly 53,000 euros.
Due to outstanding social security contributions and tax debts, a health insurer and the tax office had already filed for the opening of insolvency proceedings over the GmbH at the beginning of 2013. The company conceded its insolvency to the tax office. Insolvency proceedings were not initiated because third parties covered the company’s debts and the insolvency applications were therefore withdrawn.
The defendant freight forwarding company was unaware of the insolvency applications and the debts of the GmbH. It only knew the payment behavior of the GmbH towards it, which had always been sluggish. Although there had been reminders, no legal actions had ever been initiated.
The Federal Court of Justice decided that the insolvency administrator could not reclaim the payments amounting to approximately 53,000 euros. It could not be assumed that the freight forwarding company was aware of the imminent insolvency of the GmbH. Such a prognosis was not possible from the consistently sluggish payment behavior of the GmbH. Especially since the payment behavior had not changed over the course of the business relationship, according to the Federal Court of Justice.
Experienced attorneys in insolvency law can provide advice.
