1. Introduction to contesting insolvency in the event of gratuitous transfer of assets (also contesting donations)
The insolvency challenge is an instrument of insolvency law that serves to ensure equal treatment of creditors and to reverse unequal treatment of creditors that has already taken place.
It enables the insolvency administrator to reverse certain legal actions that were taken before the opening of the insolvency proceedings and disadvantage creditors.
In the contesting facts according to §§ 130 ff. InsO, § 134 InsO refers to free services that the debtor has rendered in favor of a creditor or third party in the last four years before the application for the opening of insolvency proceedings or after this point in time.
2. The requirements of § 134 InsO in detail
The hurdles for an insolvency challenge according to § 134 by the insolvency administrator are low. In fact, only two essential requirements have to be met here:
A creditor disadvantage and a free service.
Regarding the requirements for annulment in detail:
creditor disadvantage: Disadvantaging creditors is a central prerequisite for the challenge. It exists when the possibility of satisfaction of the insolvency creditors is reduced by the contested legal act. This can be the case, for example, if the debtor gives away assets or sells them at a price that is below market value, thereby reducing the available insolvency assets.Performance of the debtor: A performance by the debtor is given if he carries out a transfer of assets that leads to a reduction in his insolvency estate. This can be, for example, a payment, the transfer of assets or the creation of liabilities.Free of charge of the service: A service is free of charge if the debtor receives no or significantly too little consideration for his service. This is the case, for example, when the debtor gives away assets or sells them at a price well below market value.Four-year period: The challenge is excluded if the free service was provided more than four years before the insolvency application.
The typical constellations for an insolvency challenge according to § 134 InsO are gifts or the waiver of a debt.
3. The legal consequences of contesting insolvency according to § 134 InsO
The successful challenge of a free service means that the service must be reversed. The recipient of the benefit must hand over what he received to the insolvency estate. This can be in the form of money or the return of property. The release is made to the insolvency administrator, who uses the assets to satisfy the insolvency creditors.
4. Conclusion
The insolvency challenge according to § 134 InsO is an important instrument in insolvency law, which serves to ensure equal treatment of creditors. It enables the reversal of free services that harm the creditors. In the event of an impending challenge, you should contact a specialist lawyer who is familiar with the matter in order to protect your rights.
This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.
I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. (With) creditors and the insolvency administrator. Feel free to contact me by phone or write to me.
I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, including in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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