BGH recognises: Over-indebtedness independent evidence of intent to disadvantage creditors under § 133 InsO

3 years ago

In a decision dated 3 March 2022 (IX ZR 53/19), the Federal Court of Justice (BGH) commented on the requirements for intentional avoidance pursuant to Section 133 of the German Insolvency Code (InsO) (full text of the ruling here).

Noteworthy: The categorisation of over-indebtedness under insolvency law as evidence of creditor detriment. BRRS partner Joachim Büttner comments:

“The appeal allowed by the BGH for the further development of the law has not led to a cancellation and referral back. However, the BGH has recognised for the first time that over-indebtedness under insolvency law constitutes an independent sign of evidence of intent to disadvantage creditors within the meaning of section 133 InsO. It is also recognised that it is an evidentiary sign of full proof of the opposing party’s knowledge of this intent.”