First sigh of relief for investors of the container provider P&R: In a recently published decision (IX ZR 17/22), the Federal Court of Justice (BGH) has rejected an appeal against the non-admission of the appeal against a decision of the Higher Regional Court of Karlsruhe (3 U 18/20). Insolvency administrator Michael Jaffé wanted to achieve through six pilot lawsuits that container buyers should repay rent payments received and repurchase proceeds up to four years before the P&R insolvency in 2018.
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In the case not renegotiated by the BGH, the Regional Court of Karlsruhe had denied this, the OLG confirmed the judgment and did not allow an appeal. With the BGH decision, the judgment is now final. In essence, the BGH argued that the payments to the buyers of the containers were a remunerated service and the principles of § 134 of the Insolvency Code were therefore not relevant.
The entire legal reasoning is very complex and difficult for non-lawyers to understand. According to Alexander Pfisterer-Junkert, lawyer at BKL Fischer Kuehne + Partner, this is revealing. The fact that the debtor is said to have operated a pyramid scheme therefore does not in itself say anything about whether the conditions of § 134 InsO are met. However, since the debtor (P&R) was solely responsible for ensuring that the investors acquired ownership and possession of the containers, the debtor was to be attributed the economic disadvantage for impediments to performance under Paragraph 275(2) of the BGB. That paragraph provides that a debtor may refuse performance 'to the extent that it requires an expense which ... is grossly disproportionate to the creditor's interest in performance'. As a result, however, investors retained the right to consideration.
Irrespective of this, the consideration nevertheless provided does not lead to the conclusion that the service is provided free of charge. Therefore, the BGH left aside considerations of the OLG on an economic consideration as a uniform investment model, because for this reason alone it could not be assumed that the legal basis of the rent payments or the repurchase price was the surrender of the capital.
The judgment could be groundbreaking for three other non-admission appeals that are still before the BGH. The ruling affects around 54,000 investors who have suffered a total loss of more than 3 billion euros and 25,000 former investors. While the decision of the BGH is probably unreservedly positive for the former investors, it depends on the investors who still raise claims against the insolvency estate. Repayments would have increased the insolvency estate, but possibly already collected funds would have been lost. However, since the costs of the proceedings are also covered by the masses, the net effect could still be positive for investors in many cases.