If a debtor informs their creditor that they are unable to settle a due and substantial debt, this generally constitutes, according to the case law of the Federal Court of Justice (BGH), evidence that the creditor was aware of the suspension of payments. This applies in particular where the debtor states that they are unable to settle the claim either immediately, within three weeks, or by instalments.
The debtor, a construction company, regularly purchased building materials from the defendant. By the end of 2020, there were outstanding payments totalling over EUR 104,000, for which several reminders had been issued. During a meeting in early January 2021, the debtor stated that it was unable to settle the claims arising from the first two stages of the reminder process. The remaining arrears were to be paid only from future project proceeds. Consequently, the defendant made further deliveries conditional upon payment of the oldest arrears. Nevertheless, no payments were made between January and August 2021.
Following a creditor’s application dated 22 December 2021, insolvency proceedings were opened on 25 February 2022. The insolvency administrator subsequently contested three payments totalling EUR 80,000 that had been made shortly before the opening of insolvency proceedings.
The Federal Court of Justice (BGH) set aside the judgment of the Court of Appeal and referred the case back for a fresh hearing. It held that the Court of Appeal had misinterpreted the now applicable standard for determining a cessation of payments by relying on older case law. The Federal Court of Justice has since abandoned this line of case law and corrected the view it had taken in 2016. According to this, the mere declaration that it was unable to settle due liabilities constituted only an indication of awareness of insolvency.
The decisive factor is now that the debtor herself had stated that she was unable to settle due liabilities, not even in instalments, within three weeks. In the BGH’s view, such a statement constitutes particularly strong evidence of a suspension of payments. Where such a statement exists, no additional substantial evidence is generally required. Conversely, following such a statement,
The BGH further emphasised that the following circumstances do not negate the presumption of a suspension of payments:
On the contrary, the acceptance of a suspension of deliveries may even indicate that a cessation of payments had already occurred. Nor do substantial partial payments preclude this, provided that they do not cover a significant portion of the debts in relation to the total liabilities due.
The Higher Regional Court must now examine whether the suspension of payments, as evidenced by the debtor’s statements, was still in effect at the time of the payments subsequently contested.
With this decision, the Ninth Civil Division expressly departs from conflicting earlier case law. In assessing knowledge of the suspension of payments, a statement by the debtor that they are currently unable to settle a due liability will in future be given particular weight.
For creditors, this means that statements by the debtor regarding a lack of solvency must be regarded as significant warning signs. References to a later settlement of the claim, expected proceeds or other future cash inflows generally cannot rule out knowledge of the suspension of payments. Similarly, a suspension of deliveries or the provision of goods only upon payment of outstanding arrears tends to indicate, rather than rule out, knowledge of a suspension of payments. Should such situations arise, the creditor can hardly continue the business relationship without hesitation without the risk of the transaction being set aside increasing significantly.
(Federal Court of Justice, judgment of 24 September 2026 – IX ZR 65/25)
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