Unentgeltlichkeitsanfechtung bei grundlosen Leistungen

This paper deals with the Federal Court of Justice case law on the treatment of services rendered without cause within the meaning of section 134 of the German Insolvency Code (InsO). It first emphasizes that gratuitousness must be determined subjectively and that it therefore depends on the debtor's willingness to be generous in accepting gratuitousness. On the other hand, it becomes apparent that the BGH case law goes too far in its stringent determination of gratuitousness. In addition, the conditions under which the material claim for reimbursement can be regarded as “compensatory” and thus contrary to gratuitousness are elaborated. Finally, the extent to which this understanding gives rise to contradictions in assessment is examined.