Insolvency
Insolvency ( English insolvency, illiquidity ) lies in the economy occurs when a debtor 's overdue payment obligations do not meet can. The opposite is solvency .
General
The prerequisites are therefore that the payment obligations are due and that the debtor is unable to meet them. However, if he is able to meet them and does not want to meet them, he is unwilling to pay . The debtor is lacking at his insolvency of cash or unused credit lines to the overdue debt to settle. Insolvency can then only be prevented by the creditor by granting a deferral of payment through prolongation , deferral or rescheduling or even by granting debt relief .
Legal issues
In insolvency law, insolvency is a legal term regulated in Section 17 (2) InsO , according to which the debtor - regardless of his legal form - is considered insolvent if he is unable to meet the due payment obligations. As a rule, insolvency can be assumed when the debtor has stopped making payments. A debtor threatens to become insolvent in accordance with Section 18 (2) InsO if he is not likely to be able to meet the existing payment obligations at the due date. Insolvency and impending insolvency are, in addition to over-indebtedness ( Section 19 (2) InsO), the reasons for insolvency , at least one of which must be present so that an application for insolvency can be filed ( Section 15a InsO, Section 17 InsO).
Under insolvency law, insolvency exists if the debtor lacks the necessary means of payment and is therefore permanently - and not only temporarily - unable to meet his or her essential due liabilities . A temporary lack of liquidity , which must be remedied within 21 days, is not insolvent in the sense of insolvency law . The Federal Court of Justice (BGH) explains: “A distinction must be made between insolvency and the mere payment stoppage, i. H. the short-term remediable lack of cash. This must be eliminated within a maximum of three weeks. ”The BGH therefore does not share the bow wave theory . According to this, there is no insolvency if the debtor pushes a "bow wave" of liabilities in front of him, but can meet these without exception in three weeks.
economic aspects
If a payment stoppage can therefore be resolved within three weeks by the debtor finding new sources of liquidity within this period, insolvency is averted. The basis for determining solvency is a liquidity plan from which the payments and payments are made. All due payment obligations are used to determine the insolvency. This also includes those monetary debts that have not yet been dunned, sued or enforced by the creditor , as well as overdrafts of current account credit lines . If the deposits exceed the withdrawals or if both are equal, there is solvency. Accordingly, it is considered insolvency if the withdrawals exceed the deposits:
- .
This static liquidity can be expanded into a dynamic liquidity plan with the help of future maturities, so that it can be determined whether there is illiquidity at a certain point in time . This liquidity risk must be countered by means of cash management planning in advance .
For creditors, it applies in receivables management , debtors with poor payment practices to identify at an early stage to the payment risk of a future bad debt losses to be avoided.
Web links
Individual evidence
- ^ Friedrich Wilhelm Christians / Rolf-Ernst Breuer , Financing Handbook , 1980, p. 387
- ↑ Arndt Möser, The threatening insolvency of the debtor as a new opening reason , 2006, p. 49
- ↑ BGH, ruling of August 21, 2013, Az .: 1 StR 665/12 = NJW 2014, 164
- ↑ BGH, judgment of December 19, 2017, Az .: II ZR 88/16 = BGHZ 217, 130 Rz. 51
- ↑ Wolfgang Breuer / Thilo Schweizer / Claudia Breuer (eds.), Gabler Lexikon Corporate Finance , 2003, p. 119
