Update Commercial 2026: Factoring

Little news on factoring

In 2025, there were only a few decisions of significance for factoring practice.

Nullity of assignment of receivables where reassignment is permitted

Factoring is an important refinancing tool in the healthcare sector for providers of medical aids and appliances, which often use billing and clearing centres within the meaning of Section 302 of the German Social Security Code (Book V) (Sozialgesetzbuch V – SGB V). These centres prefinance the service providers’ claims against statutory health insurance funds in exchange for an assignment of the corresponding remuneration claims. They in turn frequently reassign these claims to their own lenders for refinancing. According to the Federal Court of Justice (judgment of 6 February  2025, IX ZR 182/23) (in German) the assignment of a service provider’s remuneration claim for medical aids and appliances against health insurance funds to a billing and clearing centre is void in any case if the service provider has expressly or implicitly permitted the centre to reassign that claim. The court bases this conclusion in particular on the rules governing the protection of social data.

The same applies where a pharmacy assigns receivables to a pharmacy billing and clearing centre within the meaning of Section 300 of the German Social Security Code (Book V); in this respect, the Federal Court of Justice issued a substantivly identical ruling (judgment of 6 February  2025, IX ZR 181/23) (in German).

These decisions may have far-reaching consequences for factoring arrangements in the healthcare segment and for the refinancing of such structures. They affect not only the validity of assignments of remuneration claims against health insurance funds, but also the enforcement of such claims by billing and clearing centres against the funds and the way in which these receivables are recognised in the accounts.

Challenge in insolvency proceedings to a payment made despite an order by the German Federal Financial Supervisory Authority (BaFin) under Section 46 I (2) (1) of the Banking Act not to make the payment

The Federal Financial Supervisory Authority instructed the management of a financial services institution which provided the financial service of factoring within the meaning of Section 1(1a), second Sentence, No. 9 of the German Banking Act (Kreditwesengesetz – KWG) pursuant to Section 46(1), second Sentence, No. 1 of the Banking Act, not to make any further payments that would harm creditors or the insolvency estate. Nevertheless, the factor continued to make payments, including payments to a pharmacy. After the factor became insolvent, the insolvency administrator brought an avoidance action against the pharmacy and demanded repayment of the amounts it had received. According to Nuremberg Higher Regional Court (judgment of 16 May 2025, 15 U  1767/24) (in German), such an instruction to management under Section 46(1), second Sentence, No. 1 of the Banking Act to refrain from making payments detrimental to creditors or the insolvency estate gives rise, at least for a limited period, to a right to refuse performance under Section 275(2) of the German Civil Code. The court also classified the payment made to the pharmacy in breach of the Federal Financial Supervisory Authority’s instruction as an incongruent coverage within the meaning of Section 131 of the German Insolvency Code (Insolvenzordnung – InsO), because, at the time of payment, the pharmacy no longer had a valid entitlement to receive payment in light of the Federal Financial Supervisory Authority’s order.

This decision shows that the Federal Financial Supervisory Authority’s regulatory orders can also have direct civil law implications for the performance of factoring agreements. However, the approach taken by Nuremberg Higher Regional Court, namely that an order issued to the management of a factoring institution under Section 46(1), second Sentence, No. 1 of the Banking Act also entitles the institution to withhold performance from its customers has, as far as can be seen, not previously been addressed in the case law.

This article is part of the "Update Commercial 2026". All insights and the entire report as a PDF can be found here.