Here the Gottinger Group knew that the own assets are not sufficient to serve all creditors. Also the only impending inability to pay can be an important indication of such discrimination against resolve. This does not apply only then, if it is to be expected due to a secure prospect of loans with a crisis in the near future. But may be assumed only a prevention, if there are concrete reasons for such adoption. This was but not the case, as well as no serious rehabilitation efforts have been undertaken.
An essential feature of the scheme in the German Insolvency Act of a repayment request of the insolvency administrator, however, is that the creditors of the insolvency must have known. This was the sticking point in the case of negotiated. The District Court accepted the imputation of knowledge of advocate to the investor. Now, the highest German Civil Court confirms this view. Nothing should the investor itself from impending insolvency of the Gottinger group at that time known have been. Therefore, it’s all about the attribution of foreign knowledge, in this case to that of a lawyer. This knowledge about the economic situation of the company could be found in amongst the Internet publications of the lawyer the BGH resulted.
It stated, inter alia, that everyone must be clear that claims for damages, even if they would claimed only a fraction of the investors, hard to realize were. Also case-law from the year 2005 emerged due to the Supreme Court, that substantial damages were to operate. Therefore can be assumed at least a sufficient capture of the situation took place on pages of a lawyer. Therefore, all conditions of the repayment claim exist, so that the claim of the insolvency administrator is altogether justified. Investors must therefore repay the amount received again. Bundesgerichtshof, judgment of 10 January 2016 – IX ZR 13/12, manages the Bernd rechtsanwalts GmbH with locations in Dusseldorf, Gottingen and Hannover 19 and represents companies, initiators, financial institutions and investors in all aspects of economic and capital market law. Focus is here on corporate and project finance, in particular the concept of capital market products and the creation of prospectuses as well as the financial services and capital market law, in particular in connection with the enforcement and defense of claims and disputes with the BFin.