Part Three – Effects of Commencement of Insolvency Proceedings

Chapter Two – Performance of Transactions. Co-operation of the Works Council

Section 104 – Fixed Term Transactions. Financial Services

(1) If a precise delivery date or period was agreed for goods with a market or exchange price and the date or expiry of the period occurs only after the commencement of insolvency proceedings, performance of the contract cannot be claimed; only a claim for non-performance can be asserted.

(2) If a specific date or period was agreed for financial services with a market or exchange price and the date or expiry of the period occurs only after the commencement of insolvency proceedings, performance of the contract cannot be claimed; only a claim for non-performance can be asserted. Financial services include, in particular, the following:

1. the delivery of precious metals;

2. the delivery of securities or similar rights, provided the acquisition of a participating interest in a company is not intended to create a durable link to this company;

3. cash payments to be made in foreign currency or in a unit of account;

4. cash payments, the amount of which is determined directly or indirectly by means of the exchange rate of a foreign currency or unit of account, the interest rate on claims or the price of other goods or services;

5. options and other rights to deliveries or cash payments within the meaning of numbers 1 to 4;

6. financial collateral arrangements within the meaning of section 1 (17) of the Banking Act (Kreditwesengesetz).

If transactions for financial services are combined in a master agreement in which agreement is reached that, if a ground for insolvency exists, it can only be terminated in its entirety, all these individual transactions shall be regarded as a single reciprocal contract for the purpose of sections 103 and 104.

(3) The claim for non-performance is based on the difference between the agreed price and the market or exchange price applicable at the place of performance for a contract with the agreed fulfilment date on a date agreed by the parties, but no later than on the fifth business day after commencement of insolvency proceedings. If the parties do not reach agreement, the second business day after commencement of insolvency proceedings shall be applicable. The other party may assert such a claim only as an insolvency creditor.

COPYRIGHT © Schultze & Braun 2017

German Insolvency Code / in force since 29. December 2016