Shareholder loans in the event of insolvency

Shareholder loans are not considered gratuitous benefits in insolvency proceedings

If a partner grants a loan to his/her company and, some time later, insolvency is filed for, the loan cannot be claimed as a gratuitous benefit. The loan must therefore be treated as lower-ranking by the insolvency administra-tor.


The plaintiff is the insolvency administrator of a joint-stock company (Aktiengesellschaft or AG), which in turn is the majority shareholder of a GmbH. The insolvency administrator of this GmbH is one of the defendants. The other defendant received a total of EUR 80,000.00 from the AG, which was passed on to the GmbH as a “shareholder loan.” Following the commencement of the insolvency proceedings concerning the assets of the GmbH, the plaintiff filed a claim for the repayment of the loan to the GmbH’s list of creditors. During the proceedings, the parties disputed, in particular, whether the claim for the repayment of the loan, as registered by the plaintiff, should be regarded as a non-lower-ranking claim in regards to insolvency. The plaintiff did not consider the claim to the repayment of the loan to be lower-ranking because the loan, in the plaintiff’s opinion, falls under the restructuring privilege. The GmbH had nearly been unable to pay at the time the loan was granted, and the loan had made it possible for the GmbH to continue conducting business. The loan had been granted free of charge so that the granting of the loan would be subject to what is known as the “Defense of Voidability” and could therefore be repaid to the plaintiff.

The Decision

The lawsuit was dismissed. The Federal Court of Justice (Bundesgerichtshof – BGH) has ruled that the granting of a loan by an insolvent shareholder to the same shareholder’s company, which is also insolvent, cannot be challenged as a gratuitous benefit pursuant to § 134 of the Insolvency Code (InsO) by the insolvency administrator of the shareholder. Claims for repayment of shareholder loans or from legal transactions which correspond economically to such loans can be invoked exclusively after the opening of the insolvency proceedings according to ranking of the claims of the remaining insolvency creditors of the company. If a shareholder loan is not covered by the restructuring privilege, the insolvency administrator cannot oppose the objection of the subordinate nature of the claim to the repayment of the loan, meaning that the granting of the shareholder loan as a gratuitous benefit is contestable. According to the BGH, the granting of loans is, in principle, a paid business. The borrower is obliged to pay the agreed loan interest or to repay the loan at maturity. The provision concerning the contestation of gratuitous benefits under § 134 Para. 1 of the Insolvency Code is only applicable if both contracting parties had not acted on the assumption of a balanced exchange when concluding the contract. This does not depend on the economic situation at the time the loan is issued, since all shareholder loans are subject to special treatment under the Insolvency Code, according to the BGH’s interpretation. Thus, the granting of a loan is same as the granting of funding. Consequently, the legal ramifications of granting a shareholder loan do not depend on a crisis, but rather on the insolvency of the company receiving the loan.

Practical implications

With its decision, the Federal Court of Justice (BGH) has decided to resolve the question of whether shareholders’ loans can be contested as a gratuitous benefit. The risk of the shareholder creditor, namely in the case of the shareholder’s insolvency, affects the shareholder who finances his/her company not through the raising of fresh capital but by the granting of a loan. This applies in particular to a double insolvency of the shareholder and the company. The shareholder’s own, and only partial, settlement claim requires the previous and complete satisfaction of the other insolvency creditors. Although there is an increased risk of default for the creditors because of the non-crisis-dependency of the succession of shareholder payments, the decision provides no reason to regard the granting of shareholder loans as a gratuitous benefit from the perspective of the shareholders. This decision has exacerbated the responsibility of the shareholders for proper corporate financing, since a circumvention of the capital injection has been made more difficult. In this way, the shareholders are forced to decide at an early stage whether the company should file for insolvency or be provided with fresh capital which could also be lost in the event of insolvency.

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Tags: #Gesellschafterdarlehen, #Insolvenz, #Schenkungsanfechtung, #unentgeltliche Leistung


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