Companies in the manufacturing sector are the insolvency contesting not defenseless. Based on current judgments of the Federal Court, they can reduce their financial risk.
The application for insolvency of a business partner has for companies in the manufacturing industry a huge impact - even by the so-called insolvency contestation. Had the insolvent company's financial problems is known for some time, request its liquidator often back payments that were obtained up to ten years before the bankruptcy petition. The preconditions for this are relatively low after the Federal Court of Justice case law. Under certain circumstances, it is sufficient if the business partner is granted installment. The consequence: The company in the manufacturing sector has to refund payments received as a so-called challenge opponents and remain sitting on his demands.
Based on current decisions of the Federal Court, there are defenses and preventive defensive strategies that companies can practically and effectively protect from the manufacturing sector against the financial risks of the insolvency contesting.
Minimize the financial risk
1. Agreement Proper and immediate payment: The Supreme Court has ruled that according to the agreements and direct payment for a service or supply is protected against the insolvency contesting by their clients. The power exchange will then have a cash transaction. It is crucial that the specific performance and the payment related temporally. So is there at your customer signs of a crisis, suppliers should work to ensure that currently claims arising immediate offset payments initially and can be offset to current demands.
2. No incongruent payments: Companies should not deviate from the agreed payment method. This is the case if the company receives his payment by a debtor of the customer and not itself. Such incongruent payment is easy to challenge and excludes those required for immediate processing cash transactions power exchange. Nevertheless the abbreviated method of payment is chosen, can help on the abbreviated payment channel a so-called restrictive covenant all stakeholders. However, these must be closed before the power exchange.
3. Agreement and non-repudiation of security interests: security interests - in particular from a simple retention of title of the supplier - can prevent the avoidance of payments. However, they must be ordered in good time. Payments which an existing security interest will be replaced, are not subject to appeal, as a rule. His security interests should the supplier, therefore, agree before the secured claims arise. The subsequent collateral is the BGH incongruent to sequence and thus often highly contestable.
With regard to the contestability also may be problematic under extended retention of title delivery. Such clauses contained in sales conditions and the assurance of the suppliers serving can cause the supplier can no longer rely on a cash transaction power exchange. The collateral can also further help if the security interest is not effective or the demands were in fact not secured in full. Could the supplier assume that to be even indisputable - and comprehensive security right had stock in the payment, the requirement for intentional avoidance missing.
Legal action is required of the debtor
4. Enforceable claims: Are claims recovered through enforcement action, contesting often fails - but not always - the fact that when paying any legal action the debtor is present. This is for the intent challenge, but necessary. The customer should in enforcement actions, therefore, as far as possible not be involved - about by explicitly excluded from the application for enforcement that payment agreements are concluded. If receivables or bank accounts seized, the enforcement measure should be fully carried out and the garnishment be maintained until full payment. If the customer pays the other hand, the mere threat of enforcement actions and the supplier had knowledge of its financial difficulties, the temptation is high risk.
5. Payment installments deferral requests and remediation attempt: suppliers should be especially careful when your customers want to redevelop out of court or ask Recalling liquidity problems after payment facilities. The liquidator can then relatively easy to prove that the supplier knew the liquidity problems of its customers. An intentional avoidance of taking place later (installment) payments ruled out, however, if the offer is a serious restoration attempt was based on a coherent concept, could be assumed from its success. A supplier should agree payment facilities only in such a case, and also confirm its security rights and leave to submit inventory lists or similar.
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