Matthias LindgenDie Vorteilsanrechnung im Insolvenzanfechtungsrecht

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The legal consequences of the avoidance in insolvency can be severe for the opposing party. In particular, the opposing party will often consider it unfair if it is required to surrender something as a result of the avoidance in insolvency, although he delivered to the insolvency debtor in accordance with the contract and without having any pecuniary advantage. In this context, the question then arises as to whether the opposing party can counter the challenge of the insolvency administrator with a consideration provided by him.

The dissertation is mainly about the consideration of advantages of the opposing party not only on the basis of the relevant case law history, but also examines the consideration of advantages on the basis of the individual circumstances of avoidance with the respective specific features. In this context, the study also addresses the issue of the extent to which a counter-performance should be considered and what influence it has on the application of the recognized principles in the law on avoidance in insolvency if the opposing party has made an advance payment and has therefore taken a credit risk to a certain extent.

The core theme of this study is the consideration of advantages in the context of the avoidance of recurring payments. The focus here is on the challenge of current account agreements, which is always relevant in practice, and on the challenge of multiple shareholder loans pursuant to Section 135 (1) InsO.

In the case of the avoidance of recurring payments, it is common to shift from the general principles of insolvency avoidance law in order to create appropriate and practical solutions for the respective complex of problems. However, it is not possible to transfer the less strict principles on the the consideration of advantages under Section 64 GmbHG (old version) (now Section 15b InsO) to the law on avoidance in insolvency.

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