Quota damage
In German law, quota damage is the damage caused by the late filing of an insolvency application (see Delayed bankruptcy ). The quota damage is therefore only of practical relevance where there is an obligation to file for bankruptcy.
Statutory provisions (e.g. Section 15a (1) of the Insolvency Code (InsO)) stipulate that under certain circumstances an application for insolvency must be submitted as soon as material insolvency , i.e. insolvency or overindebtedness, has occurred. This is to ensure that the assets that are liable to all of the creditors are not consumed any further. Since the insolvency creditors only receive a proportionate satisfaction in the insolvency proceedings , the obligation to submit an early application is intended to ensure the highest possible rate. If the application is not submitted on time and the liable assets are reduced for as long, the creditors receive a lower quota.
Example: The liabilities of S-GmbH amount to € 100,000. Of this, € 50,000 goes back to the large creditor B. At the time when the overindebtedness occurred, the assets of the S were still worth € 20,000. After deducting the costs of the insolvency proceedings, there was still € 10,000 to satisfy the creditors. This would mean the achieved quota = 10,000 / 100,000 = 10%. B would get € 5,000 under these circumstances. However, the managing director G negligently trusts that a large order will soon come in that would save the company. The order is missing. By paying the running costs, the assets are reduced to € 15,000. When G also realizes that it is all over, he files for bankruptcy. The mass-dependent costs of the proceedings are only around € 8,000, but the assets required to satisfy the insolvency creditors have dropped to € 7,000 and the rate to 7%. Every insolvency creditor suffered damage amounting to 3 percentage points or 30% of the original expectation. G is liable for this damage according to § 823 Abs. 2 BGB i. V. m. Section 15a (1) InsO. B, who only receives € 3,500, can demand the remaining € 1,500 from G.
If insolvency proceedings are opened (which is not mandatory because of Section 26 InsO), the creditors cannot themselves assert the quota damage against the injuring party. Rather, this right according to Section 92 InsO ( total damage liquidation ) is exclusively available to the insolvency administrator. He uniformly applies the claim for damages for all creditors to the mass, which is then increased to the amount that would have been available if the application had been made on time. However, it can happen that the perpetrator himself is no longer fully efficient.
The quota damage is not to be confused with the damage suffered by the creditors whose claims only arise after the material insolvency (so-called new creditors).
Example: The S-GmbH from the previous example has been over-indebted since January 1, 2006. On February 1, 2006, the N sells an old car to the S for € 500. The purchase price is to be paid later. In the end, N only receives the 7%, i.e. € 35. If G had submitted the application on January 1, 2006, N would not have entered into the deal at all (hence: fidelity). Your damage is therefore € 465. This damage is not a quota damage. But N also suffers a quota loss because G only files the application on March 1, 2006 if the assets liable to the insolvency creditors had also decreased between February 1 and March 1. The claim for damages is also based on Section 823 (2) BGB i. V. m. Section 15a (1) InsO. However, the fidelity damage is not a quota damage, but arises for each creditor individually and possibly in different amounts. Therefore, the insolvency administrator is not called upon to assert claims under Section 92 InsO.
practice
In practice, successful quota damage claims are rare. Even for the insolvency administrator, who has easier access to the debtor's documents than the individual creditors, calculating the quota damage is a major challenge, because it has to be calculated when the application should have been made and what the quota prospects were at that time . For larger companies, the audit is entrusted to experienced company auditors. However, this is expensive, the costs must be advanced from the crowd. In particular, if the claim for damages is suspected to be irrecoverable, the claim is often not made. In the process, the insolvency administrator is also required to provide evidence.
