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performed, the non-insolvent party to the contract may seek a Court Orderinstructing the office holder to perform the company’s obligations (“specificperformance”). In the alternative, that party will have a right to claim and prove thedamages arising from the breach of contract (likely to be an unsecured claim).A liquidator has an express right to disclaim onerous or unprofitable contracts, againleaving the creditor to prove the claim for breach of contract in the liquidation.7. Avoidable transfers – ‟Claw Back” provisionsa. GermanyThe administrator can seek to avoid a preferential transfer of company assets thatoccurred shortly before insolvency proceedings were opened. A preferential transferis one that allows one creditor to receive more than other creditors, and has anadverse impact on creditors as a whole. 31The repayment of a shareholder loan or apayment to an affiliate company can be challenged if it occurred within the yearbefore filing for insolvency.The administrator may also seek to avoid gratuitous transfers of assets made by thedebtor, as well as transfers of assets made by the debtor with the intention ofinflicting damages on other creditors. A gratuitous transfer is a payment or othertransfer of assets made to a party that is not a creditor, and is not entitled to receivethe money or asset transferred by the insolvent company. The administrator may bechallenge gratuitous transfers if they were made within four years before the31 Insolvenzordnung [InsO] [Insolvency Statute], Oct. 5, 1994 [Bundesgesetzblatt] (BGBl.] 2866, aslast amended by Art. 6 G of the Act of August 31, 2013 [BGBl.], 3533, §§ 129 ff. This “claw back”right is similar to a U.S. Bankruptcy Trustee’s right to avoid preferential transfers.22