The personal liability of the insolvency administrator for payment commitments

In insolvency proceedings, third-party payments are often made to the insolvency estate because insolvency administrators "lobby" for a payment. As a rule, everything usually goes well because the insolvency administrators have reliable liquidity planning. However, if the insolvency administrator subsequently refuses to make payment with reference to the so-called insufficiency of assets, the creditor is faced with the question of the personal liability of the insolvency administrator.

Facts of the case

The plaintiff, an employee of the insolvency debtor, is personally claiming damages from the defendant insolvency administrator for unpaid wages for the month of November. The defendant had announced at a works meeting of the insolvent company at the end of October that the business would be closed at the end of November. She is also said to have stated that the salaries would be paid. The plaintiff is of the opinion that the insolvency was already foreseeable at the time of the works meeting and that the defendant had guaranteed payment.

Decision

The Lower Saxony Regional Labour Court confirmed the dismissal of the claim at first instance. Sections 60 and 61 InsO could be considered as elements of liability. Pursuant to Section 61 InsO, the insolvency administrator is personally liable for the debts of the estate that he has created. According to established case law of the labour and civil courts, this does not apply if the liability stems from an "imposed" contractual relationship. If the insolvency administrator has not established the employment relationship, liability under section 61 InsO is therefore out of the question.

The provision of section 60 InsO as the central standard for damages for breaches of duty by the insolvency administrator only applies in the event of a breach of insolvency-specific duties. The duty to release employees if remuneration can no longer be paid applies to every employer and not just insolvency administrators. The insolvency administrator has therefore breached an obligation, but not an insolvency-specific one, so that a claim for damages exists against the insolvency estate, but not against the insolvency administrator personally.

If the elements of Sections 60 and 61 InsO are not fulfilled, personal liability can only be considered in exceptional cases according to established case law, e.g. if the insolvency administrator assumes his own obligations or places particular reliance on personal trust. In the present case, it could not be inferred from the defendant's declaration that it intended to use its private assets to fulfil the liabilities if necessary.

Practical advice

The decision makes it clear that the personal liability of the insolvency administrator must remain the exception. This is justified simply because insolvency administrators regularly have to make their decisions under great time pressure and often only on the basis of incomplete information. All the more reason for an employee (or even a creditor) to be aware of the risk and not to rely on being able to obtain compensation by claiming personal liability if necessary.

(LAG Lower Saxony (10th Chamber), judgement of 20.05.2025 - 10 SLa 800/24)