The German Federal Supreme Court clarified the rights of self-employed persons in the remaining debts in a decision dated October 15, 2009 (IX ZR 234/08) income self-employed in the insolvency. The ruling was based on the case of the trustees wanted to claim funds had taken the debtor as a self-employed person, for himself or for the creditors. Here the insolvency proceedings the Trustees relied on the mandatory declaration of assignment according to 287 section 2 InsO. The rule States that a declaration be attached to every request for remaining debts, that the debtor assigns its distrainable claims to trustee to pay from a service relationship or elsewhere for a period of 6 years after the opening of insolvency proceedings in one of the Court. Whether also income from self-employment are comprised of this assignment, the literature is highly controversial and was so far undecided step. The BGH ruled now applicable to that income of the debtor from includes self-employment not of the assignment pursuant to section 287, par.
2 InsO are and explained this with impressive arguments. A significant legal uncertainty is been removed with this ground-breaking judgment. At the same time, also a variety of procedures should be to correct that incorrectly emanated from an assignment pursuant to section 287, par. 2 InsO. Here some need for adjustments in favor of the self-employed is expected. Note: 295 para 2 InsO is the trustee in any case by the debtor – after all, but only – to make as if he would be entered into an appropriate service relationship. Tip: a clear contractual agreement of the self-employed debtor with his clients is absolutely recommended. Prof. Dr. Peter Fissenewert