by Marcello Di Stefano, lawyer and specialist in insolvency law


Anyone who acts as a payment intermediary for a later insolvency debtor - for example, as a tax advisor or lawyer via their own bank account held in trust - runs the risk of being exposed to considerable avoidance claims in the latter's insolvency proceedings. According to the case law of the Federal Supreme Court (BGH), however, more stringent requirements must be met.


Collusive interaction

According to the previous case law of the Federal Supreme Court, a disinterested trustee of a subsequent insolvency debtor is already subject to avoidance with intent pursuant to section 133 InsO if, after becoming aware of the latter's insolvency, he forwards funds given to him to certain preferential creditors in accordance with the agreement (Federal Supreme Court, judgement of 26 April 2012 -IX ZR 74/11). Thus, in addition to the knowledge of the insolvency, there must be a corresponding collusive cooperation (BGH loc. cit.; judgement of 24.01.2012 - IX ZR 11/12).


Requirements tightened

Furthermore, the Federal Supreme Court (BGH) has recently increased the requirements, inter alia, for the opponent's knowledge of the intention to disadvantage the creditor (BGH, judgement of 6 May 2021 - IX ZR 72/20). This stricter standard must also be taken into account in the case of avoidance against the trustee as intermediary for performance. The trustee must also know that the debtor will not be able to satisfy his other creditors in the future. The objective circumstances known to the trustee are relevant here (BGH, judgement of 06.05.2021 - IX ZR 72/20).


Burden of proof

The insolvency administrator has the full burden of proof for the existence of knowledge of the intent to prejudice creditors. Under certain circumstances, however, he may invoke the reversal of the burden of proof on the basis of a statutory presumption pursuant to section 133 (1) sentence 2 and (3) sentence 1 InsO, or he may invoke actual indications of proof which are to be located below the reversal of the burden of proof and which have been developed by case law (see MüKoInsO/Kayser/Freudenberg InsO section 133 marginal nos. 27-37c).



Despite the high requirements for the existence of a rescission claim and its proof, it is highly dangerous to act as a payment intermediary for a natural or legal person in financial difficulties.


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