NEWSLETTER 07-2025: THE LENDER’S DIRECT CLAIM FOR PAYMENT IN THE EVENT OF A HARD LETTER OF COMFORT IN THE BORROWER’S INSOLVENCY
In principle, the recipient of a letter of comfort has no direct claim for payment against the patron. Rather, there is only a claim to the provision of capital to the GmbH.
However, the insolvency of the GmbH frustrates this obligation to furnish the company, as a result of which the lender – according to the prevailing opinion – has a direct claim for damages against the patron. This is intended to put the lender in the same economic position as if the patron had properly endowed the company.
The Supreme Court has now clarified that a “hard” letter of comfort can actually establish a direct claim by the lender against the patron in the event of the borrower’s insolvency.
