Overview

The so-called error identity when contesting a legal transaction due to a property error according to § 119 Para. 2 BGB is the most controversial case group in the right of avoidance. The error identity means that the avoidance rule not only leads to the nullity of the binding transaction, but also of the (abstract) real legal transaction. Their applicability is controversial. The dispute goes back to the principle of abstraction, which is one of the characteristic features of German civil law and is seen as the completion of the principle of separation. The principle of separation and abstraction in insolvency proceedings (manifested in § 47 InsO), the principle of equal treatment of creditors (par conditio creditorum) and other specific insolvency law assessments and stipulations prevent an unlawful disposer from being able to obtain the economically advantageous position of a person entitled to segregation in insolvency proceedings. Rather, the contesting party pursuant to Section 119 (2) BGB is equated with the ordinary insolvency creditors pursuant to Section 38 InsO.

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