Het schemergebied voor faillissement - Höcker Advocaten

Summary
– or as economists call it: the costs of financial distress – cause creditors not to
obtain a market-efficient compensation for their risk as investor. Nevertheless,
economists do recognise that sufficient equity is necessary for an optimal
financing structure. This research has tried to come to a general but only
conceptual explanation for the existence of trade credit, in light of the existing
moral hazard for creditors. The reason that trade creditors give trade credit
although not receiving a market-efficient compensation as investor, is explained
by the fact that trade creditors are not investors but competitors trying to
influence their results by obtaining and giving trade credit.
Although the preferred position of financiers, through secured debt,
exists in some form in all Western countries, as of yet the basis for its legitimacy
lacked. This is to be found in the positive effect of financial leverage if and as
long as a positive profitability of the company exists.
XIV.5 The Pauliana-standard
The Pauliana-standard applies to individual transactions with counter parties,
which will cause other creditors do get less. The standard is based on the paritas
creditorum. It is not a standard, making transactions illegal. It is a standard that
imposes sharing if bankruptcy is to occur in the future in accordance with social
intercourse. The Pauliana-standard requires in principle: (i) recourse insolvency:
(ii) knowledge of threatening insolvency, which indeed follows later; (iii)
anticipation of detriment to other creditors as a consequence of the transaction.
The effect of the Pauliana-standard is relatively subdued compared to the
(prolonged) Beklamel-standard, because: (a) the (prolonged) Beklamel-standard
already ratifies harm to creditors in general; (b) the Pauliana-standard only
considers individual transactions and (c) most parties not being insiders will not
have knowledge of the imminent insolvency. If the Beklamel-standard is being
violated, the Pauliana-standard is only relevant to transactions out of generosity.
Because the Pauliana-standard is no more than a mechanism for distribution and
sharing, the required knowledge of imputing any action is different than of the
(prolonged) Beklamel-standard. This research shows that there is no good
reason to differentiate in transactions whether or not an obligation to perform the
transaction exists. The articles 47 and 53 of the Dutch Bankruptcy Code are
unjustified.
Because shareholders and financiers may have specific knowledge of a
threatening bankruptcy, the Pauliana-standard has a specific application for the
financing structure of the loss-making company. In case of dividend or financing
against new collateral, a solvency test should be performed if the company is
loss making, where after the solvability should at least be ‘sufficient’. 1316
1316 ‘Sufficient’ solvability according to standards of Dutch banks vary between 15% and
30%, depending on the nature of the business and valuation methods.
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