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German Federal Court of Justice rows back on insolvency avoidance

After the Federal Court of Justice (BGH) had already dealt with the statutory presumption of fact in Section 133 (1) sentence 2 of the German Insolvency Code InsO in its decisions of 3 March 2022 (IX ZR 78/20) and 23 June 2022 (IX ZR 75/21), it took up this aspect again in a decision of 26 October 2023 (IX ZR 112/22) published only now in January 2024.

This confirms our assessment published at the time, according to which the Federal Court of Justice wishes to give the presumption of Section 133 (1) sentence 2 of the German Insolvency Code (InsO) more significance again. It can be assumed that the successive changes in the chairmanship of the IX. Civil Senate responsible for bankruptcy proceedings in the last three years are responsible for this change in case law to the detriment of creditors affected by avoidance actions.

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