Review of rescission and liability claims

When companies find themselves in a crisis threatening their existence, managing directors, board members, supervisory and advisory board members bear a special responsibility and personal liability risks.

Overview

The objective, well-founded determination of the factual insolvency is of importance: From the onset of insolvency and over-indebtedness, management becomes personally liable for all payments made in breach of due diligence. Moreover, delayed filing for insolvency is a criminal offense.

Our expert determination of factual insolvency enables stakeholders to demonstrably fulfill their duties in crisis situations.

In the context of insolvency proceedings, possible liability and rescission claims must be assessed in an objective and practice-oriented manner.

This requires appropriate skills and experience at the interface between law and business administration, particularly to illuminate the "gray areas" in the best possible way. The transparent preparation and objective assessment of the existing scope for discretion and judgment enables a proper reconciliation of the interests of all parties involved and helps to avoid the time and costs of possible legal disputes.

Services

Objective bases for legally sound decisions

Questions for our team

Why is a neutral assessment so important, especially in the context of insolvencies?

The central challenge are the indeterminate legal terms that lead to the scope for assessments. One example: For liability under §15b InsO, it is open to interpretation which payments were still compatible with the diligence of a prudent executive and which were not. The same applies to the subsequent examination of the business continuity assessment. Here, the scope that exists from an ex-ante perspective must be carefully determined. By objectively filling these scopes, we help prevent costly and protracted disputes with uncertain outcomes. In short, we provide a factual basis for settlement negotiations that is acceptable to all parties.

How would you describe the value of consulting in connection with liability risks?

First and foremost is the issue of security: Our experienced team ensures that our clients have the relevant basis for decision-making in order to be able to fulfill their particular obligations. In this way, personal liability risks can be reliably excluded in the relevant context. We complement the technical knowledge of the legal advisors with business management and entrepreneurial expertise, thus enabling practical decision-making – well-founded, documented, and comprehensible.

In practice, what are the biggest challenges in determining whether a company is ready for insolvency?

In "technical" terms, a frequent challenge is the resilience and timeliness of the accounting data (keyword "unposted incoming invoices"). From a legal point of view, the interplay between impending insolvency according to § 18 InsO – which only triggers the right to file an application – and the negative business continuity assessment according to § 19 InsO – which regularly leads to an obligation to file an application due to over-indebtedness – must be considered. Without adequate and proper documentation of the careful review of the company's situation, executives run the risk of being unpleasantly surprised in the event of a subsequent review of possible liability claims.

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