Requirements for contestation again increased again
With the judgment of 10.02.2022 ( IX ZR 148/19 ), the Federal Court of Justice (BGH) decided in the continuation of its jurisprudence of May 6, 2021 ( IX ZR 72/20 ) that an opponent who only knows the debtor's payment behavior towards him is usually lacking the overview of the debtor's impossibility.
Already in the decision of May 6, 2021, the BGH had increased the requirements for the debtor's disadvantage and the knowledge of the opponent: According to this, the debtor must at least accept or appreciate covers at so -called congruent covers that they cannot pay its creditors in the future. Knowledge of the opponent of the appendix from the creditor disadvantage can only be assumed if he knows that there are other creditors whose claims cannot be fully paid by the debtor in the future.
In the judgment of 10.02.2022, the BGH now constitutes a secondary burden of proof for the insolvency administrator if the opponent proves a circumstance that makes it appear as possible to resume payments.
Facts
The opponent operates a freight forwarder and has regularly performed transport services for the debtor since 2004. As early as 2013, a health insurance and the tax office submitted an application for bankruptcy on the debtor's assets. Both applications were made to complete by third -party payments. In 2014 and 2015, the debtor's payment behavior towards the opponent was characterized by a permanent sluggish settlement of the claims. Reminders were sent regularly. However, the threat of legal steps was never implemented. After opening bankruptcy, payments from 2014 and 2015 were challenged.
The respondent was sentenced to payment by the district court. The appeal of the opponent was unsuccessful. The BGH lifted these decisions and rejected the lawsuit.
Reason for the decision
The BGH initially deals with the requirement of the debtor's creditor disadvantage. He confirms his recent case law that the debtor must know that he cannot pay his claims in the future.
The BGH also constitutes a secondary burden of proof for the insolvency administrator in relation to the continuation of the insolvency that has occurred once. In a way to the previous case law, according to which the opponent had to prove the general resumption of payments after a payment hiring, the insolvency administrator bears the secondary burden of proof if the opponent has a fact that makes a resumption of payments only appear possible. This can be assumed, for example, if the liability, the non -operation of which is determined to determine the payment setting, can no longer be used. In order to fulfill the secondary burden of proof, the insolvency administrator must also submit the debtor's payment behavior, in particular to continue to continue to be continued. In the underlying case, the complaining insolvency administrator had based the payment hiring on the insolvency applications from 2013. However, since the underlying claims were met, this could no longer be used.
In the departure from its previous case law, the BGH continues to show that payment delays alone, even if it occurs repeatedly, is no longer sufficient for a payment setting. Additional circumstances are required that achieve such a weight that corresponds to an explanation of the debtor. Such circumstances were not presented in the underlying case.
Since a creditor's disadvantage of the debtor could not be based on a payment setting and the associated knowledge of his own insolvency, the BGH also denies the knowledge of the opponent of the anti -creditor disadvantage. The BGH confirms that the opponent of the contestation alone could not generally conclude from the payment behavior of the debtor's other payment behavior. This lacks the opponent of the necessary knowledge, which, however, are necessary to assess an impending insolvency.
Conclusion
The BGH once again improves the opportunities of the opponents of contestation to successfully ward off claims of contestation by the insolvency administrator.
The opponent can present that the liability, the non -operation of which is determined to determine the payment setting, can no longer be used, for example because the liability has now been paid. The administrator then has to show further misconduct by the debtor in payment behavior. Since delayed payments are not sufficient for liabilities of the opponent, the insolvency administrator must refer to the creditor, for example, to the creditor or enforcement pressure, for example, or to the existential importance of the performance of the creditor for the debtor.
In particular, the so -called non -institutional creditors, who are usually only aware of the debtor's payment behavior and who have not exerted any enforcement pressure, will be able to successfully object in the future that they have had no knowledge of the debtor's disadvantage.
On March 3rd, 2022, the BGH announced two other, previously unpublished decisions on the subject of contemporary contestation. The files are IX ZR 78/20 and IX ZR 53/19.
