Insolvency threatens if the debtor is unlikely to be able to meet the existing payment obligations when they fall due. The forecast to be made in the assessment of impending insolvency requires that the entire financial position of the debtor be included until the maturity of all existing liabilities. If the forecast that the occurrence of insolvency is more likely than its avoidance, insolvency threatens.
The uncertainty inherent in the forecast may report to future cash
The uncertainty inherent in the forecast may report to future cash and cash equivalents as well as to the volume of future liabilities.
Liabilities therefore out of a loan can therefore not justify imminent insolvency if the right to repayment is already due for termination by a notice already given, but also if due to circumstances prevailing it is probable that it is due in the forecast period.
In a ruling dated 5 December 2013, the judgments of the Federal Court of Justice ruled that the forecast to be made when advising the threat of insolvency also included payment obligations whose due date is uncertain but for the most part probable in the forecast period.
A debtor acts with disadvantage intention
A debtor acts with disadvantage intention, if he wants the discrimination of the creditors as success of its legal action or recognizes and approves as presumable consequence.
If the debtor knows of his inability to pay, it can be deduced to a disadvantage intention. In this case, the debtor knows that his fortune is insufficient to satisfy all the creditors.
Strong evidence of the debtor’s disadvantage intent
Even the impending insolvency is a strong evidence of the debtor’s disadvantage intent, if it was known to him in the conduct of the act.
However, the debtor does not act with the intention of disadvantage if, on the basis of specific circumstances – such as the secure prospect of being able to obtain credit or realizing claims in the near future – he can expect the crisis to be overcome soon. Threatening the insolvency, it requires concrete circumstances, which suggest that the crisis is still averted.