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Internal liability: duty of care, capital maintenance and payments after insolvency
The module’s worked examples, then cases to attempt before revealing their solution · 3 sections · 361 words · 4 min
Worked example
The distribution that bites into capital
A GmbH with share capital of €25,000 has net assets of €31,000 after deducting all debts. The shareholders resolve on a payment of €10,000, and the managing director transfers it. On a simplified view only €6,000 was free; €4,000 comes out of the assets covering the share capital. For that €4,000, section 31 applies against the recipient and section 43(3) against the managing director.
Worked example
Five weeks of waiting
The metalworking GmbH from the opening has been illiquid since 2 March. The managing director negotiates no rescue and prepares no petition. The three-week period ends on 23 March, and no petition is filed afterwards either. Her payments up to 23 March enjoy no presumption because the condition of subsection 2 second sentence is missing; the payments after that date are, under subsection 3, as a rule not diligent.
Practical case
Which payment must the managing director refund?
A GmbH has been illiquid since 10 June. The managing director realises this at once and, the same day, instructs an adviser to prepare the insolvency petition. On 20 June he transfers the June wages of €14,000; on 25 June he repays a shareholder loan of €8,000. The petition reaches the court on 28 June. Which of the two payments is protected under section 15b InsO, which is not, and why?
Hint: For each payment, check whether it serves the running of the business, and whether the condition of subsection 2 second sentence was met during that time.
Show the solution
Both payments were made after illiquidity occurred and therefore fall under the ban in section 15b(1) first sentence InsO unless they are diligent. The wages serve to keep the business running and are deemed diligent under subsection 2 first sentence. The condition of the second sentence is met because the petition was prepared from the first day and filed on 28 June, within the three weeks. Repaying the shareholder loan does not serve the business and does not enjoy the presumption. It must be refunded under subsection 4 first sentence, limited under the second sentence to any smaller loss suffered by the creditors.
Answer: The wages are protected; the €8,000 loan repayment must be refunded
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