HansOLG Hamburg, decision of February 3, 2012 - 8 U 39/11

Temporary rental payment interruptions in commercial leases occur regularly and in many areas. In this context, the Higher Regional Court (OLG) Hamburg commented on the question, whether and at which point in time the lessor has to assume the (impending) inability of the lessee to pay in the event of such payment interruptions so that payments received from the lessee after the end of the payment interruption can be challenged and have to be repaid in the case of a subsequent insolvency of the lessee.

HEAD NOTE

  1. If a creditor has knowledge of actual circumstances, which compellingly indicate an impending or already occurred inability of the insolvency debtor to pay, a factual presumption suggests that he also has knowledge of the impending inability to pay. In this regard, it is sufficient that the addressee of the challenge right has knowledge of the factual circumstances from which, in case of a correct legal assessment, the impending inability to pay results without doubt.
  2. The return of direct debits as well as the non-execution of a money transfer order for rent payable for the business premises of the insolvency debtor constitute significant indications for an impending inability to pay, since both the non-execution of a money transfer order and the return of a direct debit make it clear that sufficient liquidity is no longer available.

FACTS

The plaintiff leased commercial premises to the subsequent insolvency debtor since 2001. The debtor did not pay the rent for April and May 2006. In June 2006, the money transfer order set up for the payment of rent was not executed, either, so that rents totaling EUR 38,005.05 were outstanding. Afterwards, rental payments were made in an orderly fashion again. In addition to the still outstanding claims for rent, the insolvent lessee had further payment obligations vis-à-vis the plaintiff resulting from leased car garages for the period from September 2002 until the end of 2006. These claims were reduced in a subsequent agreement and installment payments were agreed which, however, the debtor never paid. In August 2007, the plaintiff collected the rental guarantee and offset the payment received with the rent for April 2006 and part of the rent for May 2006. In September 2007, insolvency proceedings were opened over the assets of the lessee. The plaintiff demanded, inter alia, payment of the rent for the period after the commencement of insolvency proceedings until the end of the lease agreement at the end of 2007 as well as the acceptance of the open rental claims from 2006 and for the leasing of the garages, respectively, which were filed for registration with the insolvency schedule, but disputed by the insolvency administrator. The insolvency administrator invoked a challenge right pursuant to Sections 130, 133 of the German Insolvency Act (InsO) vis-àvis the plaintiff in respect of all rental payments in an amount of EUR 146,559.60, which had been made by the debtor after the end of the temporary payment interruption in July 2006 until the commencement of insolvency proceedings, and demanded a repayment of the amount. Beyond this, the insolvency administrator offset the repayment claim resulting from this challenge against the claims of the plaintiff and demanded the repayment of the remaining rent by way of a countersuit, to the extent that the repayment claim was not cancelled as a consequence of the challenge.

CONTENT AND SUBJECT OF THE DECISION

According to the opinion of the OLG Hamburg, the challenge of the debtor’s rental payments from the last year prior to the commencement of insolvency proceedings was justified, since the debtor had the intent within the meaning of Section 133 paragraph 1 InsO at the time of the payment to the plaintiff, to discriminate against its creditors and since the plaintiff had knowledge thereof. Due to the unpaid rent for April and May 2006 as well as the non-execution of the money transfer order for the rent in June 2006, a cessation of payments and thus the inability of the debtor to pay existed. In particular, this did not constitute a mere payment interruption, since the amounts at issue, which were not minor due to their existential importance for the continuation of its business operations, remained unpaid for more than 3 weeks. In addition, pursuant to established case law of the German Federal Court of Justice (BGH), the return of direct debits was a significant indication of evidence for an impending inability to pay. The same applied to the non-execution of a money transfer order, since this made it evident that no sufficient liquidity existed. Furthermore, the fact that an inability of the debtor to pay existed or was at least impending had also been recognizable for the plaintiff from the non-payment of three consecutive rent installments and the collection of the rent guarantee by the plaintiff as well as the non-payment of the also outstanding garage rent (in spite of its reduction and agreement of an installment payment).

IMPACT ON DAY-TO-DAY BUSINESS

The insolvency challenge based on intentional discrimination pursuant to Section 133 paragraph 1 InsO first inter alia requires that the debtor made payments with the intent to discriminate against creditors during the last 10 years before the insolvency application filing and that the payment recipient had knowledge of the debtor’s intent at the time of that transaction. This knowledge is presumed, if the payment recipient knew that the debtor’s inability to pay was impending and that the transaction discriminated against the creditors.

The question regarding the intent of the debtor to discriminate against his creditors and the payment recipient’s knowledge thereof, respectively, is the element of Section 133 paragraph 1 InsO that is the most difficult to assess. The court decisions rendered on this subject over the last several years reflect the courts’ general tendency to continuously reduce the thresholds particularly for the payment recipient’s knowledge of the impending inability of the debtor to pay. While the case law is still characterized by many individual considerations in each case and by diverging decisions so that a generalization of the present decision is possible only to a limited extent, the decision of the OLG Hamburg nevertheless confronts lessors of commercial premises with a problem in the event of temporary payment interruptions of the lessee: All rental payments which the lessee makes to the lessor in an orderly fashion after a temporary payment interruption might have to be paid back in case of an insolvency of the lessee, such insolvency potentially to occur not until many years later. The period relevant for a challenge right may reach back up to 10 years prior to the filing for the opining of insolvency proceeding. Accordingly, the lessor would have to terminate the lease agreement in the event of payment interruptions as soon as the prerequisites for such a termination due to the default of the lessee are fulfilled in order to not expose himself to the risk of losing any payments received thereafter. It is obvious that this will regularly be neither in the interest of the lessor nor of the lessee. This approach would be feasible for the lessor only, if he can be sure that he will soon be able to release the object. It must therefore be hoped that this problem, which is not treated by all courts in the same manner, will be clarified by the BGH as soon as possible.