Het schemergebied voor faillissement - Höcker Advocaten

Hoofdstuk XIV
The economic efficiency of the going concern assumption and the
limited liability company can only be achieved if shareholders are not legally
obligated to supply further equity. Subsequently shareholders are not involved in
the discontinuity risk of the recourse insolvent company, which is making
losses. On the other hand any additional equity of the recourse insolvent
company diminishes the discontinuity risk of financiers and creditors only. This
mechanism may imply a suboptimal investment policy of the company with a
limited solvability. To involve shareholders in the timely allocation of the
discontinuity risk of the company, a minimum solvability ratio should be
determined for the continuation of the recourse insolvent company.
A liquidity test is commonly used as a test for bankruptcy. However, it
is insufficient to provide a criterion for justifying future expectations for
profitability since losses can be financed by (secured) debt capital.
The (prolonged) Beklamel-standard does not avoid insolvency.
Calamities occur and liquidation losses will exceed equity requirements. This is
the consequence of the choice of legitimising recourse insolvency for economic
efficient reasons. The (prolonged) Beklamel-standard including its solvency test
and the maximum debt financing has various effects:
(a) a certain coverage for existing obligations;
(b) improvement of a timely reorganisation and proof of justified
expectations with regard to future profitability;
(c) a mechanism of distribution of the risks of recourse insolvency among
all three stakeholders;
(d) limitation of debt financing of continuing losses;
(e) reflection on the fact that debt financing is only economically efficient
if the profitability is sufficient;
(f) limitation of debt financing against securities at the detriment of
unsecured creditors.
Although further research has to be done, it has been proposed to use minimum
solvability ratios, which are already being used by banks, for ‘insufficient’
solvability of different kinds of companies. 1314
XIV.4 Theory of finance
This research tries to explain why the theory of finance has not as of yet come to
explicit limits to the financing structure due to the assumption of going concern.
The MM 1315 -theorem implies the hypothesis of market-efficient behaviour of all
stakeholders. Recent research has proven this to be incorrect for creditors. They
obtain compensation, which is more or less equal to the compensation that
financiers with secured debt obtain. It appears that the theory of finance is
implicitly based on the assumption of going concern. The discontinuity risk has
been given little attention. Consequences of information asymmetry of creditors
1314 ‘Insufficient’ solvability according to standards of Dutch banks vary between 10% and
20% depending on the nature of the business and used valuation methods.
1315 Modigliani and Miller.
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