DE: On the disadvantage to creditors in the case of double collateralisation

Mar 4, 2022 Benn-Ibler Rechtsanwälte

If a third party's claim is secured by a shareholder, the shareholder must give priority to satisfying the third party in the event of insolvency. Otherwise, the shareholder disadvantages the creditors if he is released from his guarantee due to the repayment of the loan from the company's funds. This also applies if the third party could no longer have made a claim against the shareholder under the shareholder security at the time of the satisfaction of the claim.

In the case at hand, the managing director and sole shareholder of an insolvent company refused to settle a claim arising from an insolvency challenge. In 2011, the managing director secured a bank loan as guarantor. At the same time, his company assigned all customer claims to the bank by way of blanket assignment. In 2012, the company went into insolvency. The insolvency trustee finally forwarded EUR 30,545.87 to the bank after settling the account on the basis of the blanket assignment. He is now demanding reimbursement of this amount from the sole shareholder by way of contesting insolvency. The defendant raised the plea of statute of limitations.

The German Federal Supreme Court (Bundesgerichtshof, BGH) agreed with the insolvency trustee. Priority liability exists in the case of double collateralisation even if the collateral of the company, in this case the assignments by way of blanket assignment, first leads to the satisfaction of creditors. In particular, the senate found that creditors were disadvantaged. In the case of a third-party loan, which is secured by the shareholder, this is always the case, according to the BGH, insofar as the third party is satisfied from the company's own funds. This is because the satisfaction of the third party, in this case the bank, reduces the company's assets and thus makes it more difficult for the insolvency creditors to satisfy their claims from an economic point of view.

It is also irrelevant whether the bank itself, as a third party, could have made use of the guarantee. Thus, any statute of limitations on the claim under the guarantee is also irrelevant. This is because a challenge in the context of insolvency is not about the relationship of the third party to the shareholder, but only about the relationship of the third party to the company.

BGH, IX ZR 201/20 (09.12.2021)