A recent judgment (German FCJ, 10 September 2015, IX ZR
215/13) deals with the question whether the recipient of a
payment may be subject to a clawback claim if he returned the
received amount to the debtor before the opening of
A debtor had guaranteed the loan liabilities of a German limited
liability company. When the bank made demand on the debtor, he
transferred money to his wife's bank account. He also
terminated a life insurance contract and required the insurance to
pay the amount disbursed into his wife's account.
His wife then withdrew the amounts received and handed them back
to the debtor as cash payments in order to make it more difficult
for the creditors to access the debtor's funds. After
insolvency proceedings over the debtor's assets were opened,
the insolvency administrator sued the wife for restitution of the
Clawback claims succeed when creditors have been disadvantaged
by the action being challenged.
Here, the defendant argued that creditors had suffered no
detriment because the amounts received were returned to the debtor
right away. The FCJ, however, held to the contrary. Creditors can
seize monies in bank accounts relatively quickly, but cash is not
easy to get hold of and easily dissipated.
The underlying facts of the judgment show a 'creative'
attempt to withdraw assets from the (prospective) insolvency estate
by collusive actions between a 'trustee' and the
This FCJ judgment limits debtors attempting to circumvent
legitimate claims by creditors, and thus upholds the principle of
insolvency proceedings regarding equal treatment of creditors.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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