Preferences – the end of the “chain presumption rule”

What initially started as a “careful attenuation” (here, in German), then turned out to be a “new orientation” (according to the BGH itself, here), now really develops into a new (old?) BGH doctrine of avoidance with the judgement analysed below:

The central statement of the BGH is found in para 27 of the judgment:

“If an essentially constant, permanently sluggish payment behaviour of the later debtor also refers to a period in which the debtor had indisputably not yet ceased his payments, it cannot be concluded from the payment behaviour that a cessation of payments occurred later.

And further (para 28):

“Since it cannot be concluded with sufficient certainty from the debtor’s payment behaviour vis-à-vis the defendant that payments had been suspended at a certain point in time, it also cannot be assumed that the defendant was aware of a (presumed) intention on the part of the debtor to prejudice creditors.

And finally (para. 29):

“However, the opponent of avoidance [the creditor], who is only aware of the debtor’s payment behaviour towards him, generally lacks the knowledge required to assess the threat of insolvency.”

Conclusion: With this reasoning, the BGH (once again) breaks with its previous, unfortunate doctrine known as the “chain presumption rule” (see Beissenhirtz, ZInsO 2016, 1778, 1785, available here (in German), for a critique) and returns to the basic rules of the distribution of the burden of proof in civil law. This gain in legal certainty is offset by a reduction in potential income from avoidance proceedings and thus possibly a lower insolvency quota for the creditors. However, taking into account that this qouta has so far averaged only 3.8% (here, in German) despite the very administrator-friendly case law until recently, such further diminishing of any payouts should not matter anyway.

BGH, Urt. v. 10.02.2022 – IX ZR 148/19 (in German)

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