Paulian lawsuit

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The fraudulent conveyance is an action for rescission of transactions , to the detriment of one or more creditors have been completed.

The lawsuit (lat. Actio Pauliana ) goes back to Roman law and is named after a digest passage (D. 22,1,38,4) of the lawyer Paulus .

Roman law

In Roman law , the praetor granted two legal remedies against the disadvantage of creditors:

  • In integrum restitutio (during foreclosure),
  • Interdictum fraudatorium (after bankruptcy proceedings have ended).

From Justinian these remedies have been combined into a single action, the Actio Pauliana.

Germany

In Germany, a distinction is made between the contestation of legal acts detrimental to creditors by an insolvency administrator after the opening of insolvency proceedings over the assets of a debtor (then insolvency contestation according to § § 129 ff. InsO ) and contestation outside the insolvency proceedings by an individual creditor according to the Avoidance Act . The term Paulian challenge is not used for this.

Switzerland

The Paulian challenge of Swiss law is the challenge of a legal transaction that a person or company entered into shortly before bankruptcy was opened . It serves the equal treatment of all creditors in the foreclosure by preserving the assets of the bankruptcy or estate that are affected by the challenge.

It is permissible both inside and outside of bankruptcy. This results in particular from the corresponding description of the active legitimation in Art. 285 Para. 2 DEBA .

In modern Swiss law, a distinction is made between donation, over-indebtedness and intentional payments (Art. 285 ff. SchKG ).

Liechtenstein

The Paulian action for avoidance is regulated in Liechtenstein in the avoidance order.

Purpose and right to challenge

The legal acts mentioned in the avoidance rules, which affect the assets of a debtor, can be challenged for the purpose of satisfying a obligee and declared as ineffective against him. Every creditor with an enforceable claim is entitled to contest it, regardless of the point in time at which it arose (right to contest), provided that the foreclosure did not lead to a complete satisfaction of the obligee or, when the enforcement was granted, it can be assumed that it will not lead to such a claim .

Assertion

The contestation can be asserted by action ( counterclaim ) or objection, by order to pay or by legal notice.

If the contestant proves that the contestable obligee himself wanted the contestable legal act, consented to it or subsequently approved it with knowledge of the contestable circumstances, the contestation claim must be rejected.

Opposition possibility

Active actions

The following legal acts, for example, can be contested within one year prior to the authorization of foreclosure :

  • unpaid disposals (e.g. waiver of a not yet acquired right, rejection of an inheritance. Likewise, gifts that have been made in principle, insofar as these legal acts are not the fulfillment of a legal obligation, customary occasional gifts);
  • Legal transactions in which the debtor has accepted consideration at the time of his performance that is disproportionate to his own performance;
  • Legal transactions through which the debtor has acquired an annuity or usufruct for himself or a third party;
  • the seizure or return of the marriage gift , the debtor provided, neither by at inception of marriage or order of the marriage contract concluded, even in the event of termination of the marital union was required by law, the seizure or handing over the abutment or the widow content.
  • Establishment of a lien or rights equivalent to this in terms of legal effect, to secure existing liabilities, the fulfillment of which the debtor was not previously legally or legally obliged to ensure;
  • Settlement of a monetary debt in a way other than cash or other usual means of payment ;
  • the payment of a debt that has not expired.

Irrespective of the time at which they were carried out, all legal acts which the debtor has undertaken with the intention of the other party at the time of their execution to disadvantage his creditors or to favor individual creditors to the disadvantage of others are contestable.

Omissions

Failures on the part of the debtor through which he loses a right or through which pecuniary claims against him are justified, preserved or secured can also be contested. Examples:

  • Failure to take on an inheritance, or
  • Failure to contest the violation of the compulsory portion or
  • Failure to contest an impermissible disinheritance.

Consequences for the contestant

Anyone who has acquired the debtor's assets through a contestable legal act is fundamentally obliged to return them.

Statute of limitations

The action for avoidance (counterclaim) becomes statute-barred five years after the legal act which can be challenged was carried out.

Web links

literature

  • Hans Ankum : De divorced the "Actio Pauliana" . Willink, Zwolle 1962 (Dutch).
  • Max Kaser, Rolf Knütel: Roman private law . CH Beck Verlag, Munich, 19th edition 2008, § 9 marginal no. 11 f., ISBN 3-406-57623-0 .
  • Götz Grevesmühl: The contestation of creditors according to classical Roman law . Wallstein-Verlag, Göttingen 2003, ISBN 3-89244-645-8 .

Sources and References

  1. ↑ See Max Kaser / Rolf Knütel, Römisches Privatrecht 19 , § 10 Rn. 12.
  2. ↑ Max Kaser / Rolf Knütel, Roman Private Law 19 , § 10 Rn. 11.
  3. ↑ Marc Hunziker, Michel Pellascio: Debt collection and bankruptcy law. Orell Füssli, Zurich 2008, ISBN 978-3-280-07072-7 , p. 305 f.
  4. ↑ The contestation regulation is part of the legal security regulation (Art 64 to 74 legal security regulation, RSO, dated February 9, 1923, LGBl 8/1923).
  5. ↑ Art 64 para. 1 and 2 RSO.
  6. ↑ Art 64 para. 3 RSO.
  7. ↑ Art 64 para. 4 RSO.
  8. ↑ Art 65 f RSO.
  9. ↑ Art 67 para. 1 RSO.
  10. ↑ Art 71 para. 1 RSO.
  11. ↑ Art 74 para. 1 RSO.