In its judgment of 8 February 2012 (Stuttgart HRC, judgment of 08.02.2012 − 14 U 27 / 11) the Stuttgart Higher Regional Court addressed the issue of subordination of a loan originally granted by a shareholder to a GmbH & Co. KG (limited partnership) which was assigned to a non-shareholder within a period of a year as defined in section 135(1) no. 2 of the Insolvency Act (InsO) and then repaid to the non-shareholder. The insolvency administrator had brought an action to claim reimbursement of the repaid amounts against the assignor (shareholder) but not against the assignee as the recipient of performance. The Stuttgart court rejected the action due to the lack of foundation of the claim. It noted that even though the defence of subordination can be raised against the assignee under section 404 of the German Civil Code if the loan claims are assigned within a year as per section 135(2) of the Insolvency Act, the insolvency administrator’s claim for restitution based on sections 135(1) no. 2 and 143 of the InsO is solely directed against the assignee as the recipient of performance. The Stuttgart HRC rejected any additional joint and several liability on the part of the assignor (shareholder). Liability of this kind could not be deduced from section 143(3) of the Insolvency Act, nor did the case involve a voidable indirect preferential treatment of the shareholder. According to the judgment by Stuttgart HRC, indirect preferential treatment of the assignor giving rise to a claim would only be conceivable if the assignment occurred for the purposes of evasion, with the assignee acting merely as a front man without assets.