Avoidance Act
| Basic data | |
|---|---|
| Title: | Law on contesting legal acts of a debtor outside of bankruptcy proceedings |
| Short title: | Avoidance Act |
| Abbreviation: | Beginning |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Law of obligations , procedural law |
| References : | 311-14-2 |
| Original version from: | July 21, 1879 ( RGBl. P. 277) |
| Entry into force on: | October 1, 1879 |
| New announcement from: | May 20, 1898 (RGBl. P. 709) |
| Last revision from: | October 5, 1994 ( BGBl. I p. 2911 ) |
| Entry into force of the new version on: |
January 1, 1999 |
| Last change by: |
Art. 3 G of March 29, 2017 ( Federal Law Gazette I pp. 654, 655 ) |
| Effective date of the last change: |
April 5, 2017 (Art. 4 G of March 29, 2017) |
| GESTA : | C085 |
| Weblink: | Text of the AnfG |
| Please note the note on the applicable legal version. | |
Since 1879, the German Avoidance Act has regulated the conditions under which a creditor can challenge legal acts of his debtor that disadvantage him.
history
The Paulian lawsuit ( actio Pauliana ) had already existed in Roman law since Justinian .
effect
The Avoidance Act gives a creditor the opportunity to access his debtor's valuable object by means of enforcement measures even if the debtor has transferred this valuable object to a third person through a legal act . The prerequisite is that the legal act of the debtor disadvantages the obligee, for example by the debtor transferring all of his assets to his wife and then no longer being able to settle his debts. The creditor can then contest the transfer of assets within certain time limits. If the challenge is successful, the third person must allow the creditor to access the asset.
A strict distinction is to be made between contestation under the Avoidance Act and contestation of a declaration of intent, for example because of an error of declaration or fraudulent deception . The contestation of a declaration of intent is the exercise of a structuring right, which leads to the fact that the legal transaction, which came about through the declaration of intent to be contested, becomes null and void with retroactive effect. This effect takes effect immediately by submitting a declaration of avoidance to the opposing party (the contractual partner of the legal transaction to be contested).
The effect of the avoidance according to the law of avoidance is completely different. No legal declaration is required here; instead, if the preconditions for avoidance are met, there is a legal obligation between the obligee and the counterparty (the recipient of the property given away by the debtor). There is a claim to make the given object of value available to the obligee for the purpose of satisfying his claim ( § 11 ). This claim, which, according to the prevailing view, is of a contractual nature, must usually be asserted through civil action by way of a lawsuit ( Section 13 ), whereby the application must be made to tolerate the opposing party due to a certain claim of the obligee against the debtor of foreclosure on the specific property.
If insolvency proceedings have been opened against the debtor's assets , the avoidance provisions of the Insolvency Code apply . A challenge on the basis of the Avoidance Act is then no longer possible.
Regular cases
The Avoidance Act knows three normal cases in which legal acts can be challenged:
- Avoidance according to § 3 Paragraph 1: Legal acts that the debtor has undertaken with the intent to disadvantage the obligee if the third person was aware of the intent.
- Avoidance according to Section 3 (2): Contracts for payment that the debtor has concluded with a closely related person.
- Avoidance according to § 4 Paragraph 1: Free services by the debtor to a third person, in particular gifts .
Special rules apply to legal acts of the heir ( § 5 ) and for equity-replacing shareholder loans ( § 6 ).
literature
- Michael Huber: Avoidance Law. Comment . CH Beck, 11th edition, Munich 2006, ISBN 978-3-406-65235-6 .
- Hans-Peter Kirchhof (Ed.): Appeal Act. Munich Commentary. CH Beck, 1st edition, Munich 2012, ISBN 978-3-406-63425-3 .
