Shareholder loan (§ 39 (1) no. 5 InsO)

When a shareholder funds „their” company with a loan instead of equity, § 39 (1) no. 5 InsO automatically ranks the repayment claim last among insolvency creditors — regardless of how the loan is labelled (restructuring loan, working-capital loan, or otherwise). The rule prevents shareholders from economically shifting entrepreneurial risk onto third-party creditors by structuring their contribution as debt rather than equity. It also covers economically equivalent acts, such as a receivable left outstanding, or a shareholder guarantee for company liabilities.

Repayments of shareholder loans are additionally subject to stricter avoidance under § 135 InsO: payments made within the last year before the insolvency filing are voidable and must be repaid by the shareholder to the estate — a materially longer look-back than the standard avoidance period for other creditors. An exception is the restructuring privilege (Sanierungsprivileg, § 39 (4) InsO) for investors who acquire shares as part of a restructuring.

For buyers, the subordination matters twice over: first, shareholder loans registered only as subordinated claims in the insolvency table usually don't reduce the estate available for third-party creditors — they're economically worthless and not a realistic acquisition target. Second, when signing with the incumbent shareholder-seller, it's worth checking whether older loans were repaid within the one-year look-back — such repayments could later burden the deal through avoidance liability against the recipient.