Disorder Agreement Deutsch
Despite the opening of the insolvency proceedings, p. 108 InsO, real estate leases and employment and service contracts are maintained by law. All claims arising from such an agreement prior to the initiation of insolvency proceedings must be submitted in the form of an ordinary unsecured insolvency application. However, claims that arise after the insolvency proceedings have been opened are preferred claims. Instead of the right of option, the judicial administrator is granted special rights of termination and retraction for this type of agreement. The insolvency provisions relating to the performance of mutuality contracts (s. 103 and following, insolvency settlement, InsO) give the liquidator a right of option as to whether the agreements reached before the opening of the proceedings and which have not yet been fully complied with by both parties are respected. The initiation of an insolvency procedure does not result in a reorganization of the content of the agreements, but the outstanding claims of the agreement not respected by both parties are no longer applicable. These rules are intended to enable the judicial administrator to maintain or increase the mass of insolvency, to allow attempts at restructuring and to prevent the debtor`s contractor from terminating an agreement favourable to the mass of insolvency as a result of insolvency. With respect to the laws on employment and service contracts, the administrator also has the right to terminate the underlying contract with a period of three months until the end of the month, regardless of an agreed or applicable legal notice.
Workers subject to longer or insoluble notice periods as part of their employment or employment contracts may, as unsecured ordinary creditors, claim damages commensurated with the compensation and benefits they would have received if periodic notice periods were applicable. However, for workers whose employment contracts are unrecoverable, the amount of the right to damage is limited to the amount calculated on the basis of the longest notice period in force. With the exception of very limited exceptions, assignments, agency contracts or powers related to the mass of insolvency stop at the opening of the insolvency proceedings by legal protection. The rights to an agreed compensation or compensation for expenses can only be invoked as a non-pretension in the insolvency plan. Contractual agreements that exclude or restrict the applicability of the judicial administrator`s right of option under the art. 103 and after. InsOs are not valid. In its judgment of 15 November 2012, the Bundesgerichtshof (Bundesgerichtshof – BGH) clarified, with regard to the ongoing commitment agreements, that termination clauses related to an insolvency event (a solution clause in the event of a dependent bankruptcy) compromise the administrator`s right to choose between the benefit or non-compliance and are therefore invalid.