1. The insolvency administrator’s right to choose according to Section 103 InsO for leasing contracts
In principle, the right to choose whether to continue leasing contracts in the event of insolvency – like other contracts – is subordinated to Section 103 InsO. According to this, the insolvency administrator has the right to choose whether he wants to continue the contract or not.
The special regulation of Section 108 Paragraph 1 Sentence 1 InsO applies to real estate leasing contracts. The legislature has explicitly excluded this from the insolvency administrator’s right to choose.
In addition, the legislature has created a special regulation for leasing contracts that concern movable objects and in which the debtor was the lessor and a third party financed the leased object and the financing item was transferred to him as security via Section 108 Paragraph 1 Sentence 2 InsO.
The special regulation of Section 108 Paragraph 1 Sentence 2 InsO only applies if the aforementioned requirements are met. Otherwise, it is a “normal” leasing contract for movable objects, which can be assigned to the basic case of Section 103 InsO.
2. The right to choose in the event of the lessee becoming insolvent
a) Leasing contracts for movable property
If it is a leasing contract for a movable item, if insolvency is declared against the lessee’s assets, the insolvency administrator can choose to terminate the contract or continue the existing leasing contract (“performance”) in accordance with Section 103 InsO.
If the insolvency administrator refuses to fulfill the contract, contractual claims for damages must be registered with the lessor as an insolvency claim in accordance with Section 38 InsO in the insolvency table.
If the insolvency administrator chooses to fulfill the contract, the leasing contract becomes “mandatory” for the insolvency estate. I.e. The payment obligations from the leasing contract are now mass liabilities according to Section 55 InsO.
If the administrator does not make the decision about fulfillment immediately and continues to use the subject matter of the contract, the lessor can assert a claim for unjust enrichment in accordance with Section 55 Paragraph 1No. 3 InsO assert.
b) Immobilienleasing
When it comes to the question of the legal treatment of real estate leasing contracts in the event of the lessee’s insolvency, a fundamental distinction must be made as to whether the leasing contract is to be classified as a rental agreement or as a purchase agreement.
If, in exceptional cases, it is a contract similar to a sales contract (rare cases!), the normal case applies under Section 103 InsO. The legal situation then corresponds to that of movable property leasing (with the exception that the restriction of Section 112 InsO does not apply).
If the real estate leasing is of a tenancy nature, a distinction must be made according to Section 109 InsO as to whether the insolvency declaration took place before or after the leased property was handed over.
If the property was left before the bankruptcy was declared, only the insolvency administrator can terminate the leasing contract in accordance with Section 109 Paragraph 1 InsO in conjunction with Section 573c BGB
If insolvency was opened before the leased property was handed over, both the insolvency administrator and the lessor can withdraw from the contract in accordance with Section 109 Paragraph 2 InsO.
3. The right to choose in the event of the lessor’s insolvency
a) Leasing contracts for movable property
In the case of leasing contracts for movable objects, in the event of the insolvency of the lessor – as already explained above – a distinction must first be made according to whether or not there is a leasing contract with transfer of ownership of the leased goods as security to a refinancing bank.
The application of the standards Section 103 Inso or Section 108 Paragraph 1 Sentence 2 InsO depends on this.
If it is a leasing contract without transfer of the leased goods as security to a refinancing bank, Section 103 InsO applies. If the administrator decides to reject the contract in this case, the lessee no longer has to pay any further leasing installments.
If, on the other hand, the administrator chooses to fulfill the contract, The lessee has to pay the leasing installments to the administrator and can continue to use the leased goods.
If this is a special case regarding a leasing contract for movables, the purchase or production of which was financed by a third party and to whom the leased goods were transferred as security, Section 108 Paragraph 2 InsO applies.
As a result, this means that the leasing contract is insolvency-proof and the administrator has no right to choose according to Section 103 InsO.
This also means that in the event of a security assignment of the leasing installments to the financing bank, the leasing installments are due to the bank and not the administrator after the declaration of insolvency. Legally complex issues can arise in this area.
b) Immobilienleasing
Leasing contracts in the event of the lessor’s insolvency are “insolvency-proof” via Section 108 InsO (also due to the application of Section 110 InsO).
This article does not represent specific and individual legal advice, but rather 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 an expert lawyer.
I would be happy to assist you as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. (With) creditors, the insolvency court and the insolvency administrator. Please 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 legal 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, Münster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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