2nd OSE Symposium
Speaker: Deputy President BGH Dr. Hans Gerhard Ganter
Moderator: RA Axel Rinkler (Karlsruhe)
The decision of the BGH of November 17, 2005 was already an important basis for the discussion at the 1st symposium. The central question here was to what extent answers can be derived from the ruling on the insolvency resistance of escrow, maintenance agreements and license agreements. This was also discussed in the literature both before and after the 1st Symposium.
1 The presentation by Deputy President of the Federal Court of Justice Dr. Hans Gerhard Ganter, who as a member of the IXth Civil Senate was himself involved in this much-cited judgment, followed on from this. In this respect, the presentation made a very special contribution to understanding the background and reasoning of the judgment. In the underlying case, there were two grants of rights of use, firstly through the license agreement and secondly through the grant in rem as a result of the termination of the license agreement. Only this second grant of rights of use was decided in the judgment, as the license agreement was not relevant due to the subject matter of the dispute in the appeal. The BGH was bound by the Karlsruhe Higher Regional Court’s factual assessment that the license agreement constituted a conditional transfer of the rights to the source code. Accordingly, the BGH only examined three questions.
Firstly, whether the condition had occurred as a result of termination and thus the source code had become part of the insolvency estate through a transfer of rights in rem, Section 91 (1) InsO. Secondly, whether this contractual arrangement constitutes a circumvention of section 119 InsO and thirdly, the contestability of the licensee’s acquisition of rights pursuant to section 129 et seq. InsO. As a result, it was decided in this very special case that the right to extraordinary termination under the license agreement when exercising the insolvency administrator’s right of choice pursuant to Section 103 InsO arises from the refusal of performance and that the condition had therefore been met. Furthermore, this was not a circumvention in accordance with § 119 InsO, as the right of termination, although in fact counteracting the decision of the insolvency administrator, was not legally aimed at this and was not specifically linked to the opening of insolvency proceedings or the exercise of the insolvency administrator’s right of choice (?release clause?). The challenge failed due to a lack of evidence or a time limit.
The “release clause” with which the BGH dealt therefore only related to the granting of rights in rem by the occurrence of conditions and not to the license agreement. It was found that this was an individual decision in a special case. Contrary to the assumption of the literature, the ruling therefore makes no statement on the insolvency resistance of license agreements or escrow, as this was not the subject of the decision and the BGH neither had to nor wanted to decide this. From the BGH’s point of view, this ruling is neither a “breakthrough” nor a “missed opportunity” for answering the question of the insolvency resistance of escrow or license agreements. However, the transfer of ownership of the data carrier with the source code prior to the opening of insolvency proceedings under the suspensive condition of an effective termination should be insolvency-proof. The 2nd symposium clearly showed that, despite the decision of November 17, 2005, there is still legal uncertainty regarding escrow with regard to the insolvency-proof design of license agreements and the handling of source code, which requires further consideration of the topic. It was particularly interesting that it emerged during the discussion that it was not generally understood that in the case of software escrow it cannot be assumed that the release of a source code copy to the user results in complete economic devaluation from the perspective of the licensor (insolvency administrator), as only one (of many possible) copies is released and the use of this copy is also contractually defined or restricted (e.g. maintenance/adaptation only for own use).