(1) If the delivery of goods with a market or stock exchange price was agreed to take place exactly on a fixed date or within a fixed period, and if such date or expiry of the period occurs after the insolvency proceedings were opened, performance may not be claimed, but only claims for non-performance. This also applies to financial services transactions with a market or stock exchange price for which performance was agreed to take place on a fixed date or within a fixed period and such date or expiry of the period occurs after the insolvency proceedings were opened. The following, in particular, are considered to be financial services:
1. the supply of precious metals,
2. the supply of financial instruments or comparable rights, unless the acquisition of a participation in a company to establish a long-term association with that company is being planned,
3. performances in specie
a) which have to be effected in foreign currency or in a mathematical unit or
b) the amount of which is indirectly or directly determined by the exchange rate of a foreign currency or mathematical unit, by the interest rate prevailing for claims or by the price of other goods or services,
4. services and performances in specie deriving from derivative financial instruments which are not ruled out by no. 2,
5. options and other rights to deliveries pursuant to sentence 1 or to deliveries, performances in specie, options and rights within the meaning of nos. 1 to 5,
6. financial securities within the meaning of section 1 (17) of the Banking Act.
Financial instruments within the meaning of sentence 3 no. 2 and no. 4 are the instruments referred to in Annex 1 Section C of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349; L 74, 18.3.2015, p. 38; L 188, 13.7.2016, p. 28; L 273, 8.10.2016, p. 35), as last amended by Directive (EU) 2016/1034 (OJ L 175, 30.6.2016, p. 8).
(2) Such claim for non-performance is based on the market or stock exchange price of the transaction. The market or stock exchange price is considered to be
1. the market or stock exchange price of a substitute transaction which is concluded without delay, at the latest, however, on the fifth working day after the opening of insolvency proceedings or
2. the market or stock exchange price of a substitute transaction which could have been concluded on the second working day after the opening of insolvency proceedings if no substitute transaction as referred to in no. 1 is concluded.
Where the market does not permit the conclusion of a substitute transaction in accordance with sentence 2 no. 1 or no. 2, the market and stock exchange price is to be determined on the basis of those methods and procedures which guarantee fair valuation of the transaction.
(3) Where transactions as referred to in subsection (1) are grouped together under a single contract based on a framework contract or the policy of a central counterparty within the meaning of section 1 (31) of the Banking Act and such contract or policy provides that the incorporated transactions may, on certain grounds, only be terminated together, then the incorporated transactions as a whole are considered to be one transaction within the meaning of subsection (1). This also applies if other transactions are incorporated at the same time; general provisions apply to the latter.
(4) The contracting parties may agree deviating provisions as long as these comply with the essential basic principles of the relevant statutory provision from which they deviate. They may, in particular, agree
1. that the effects referred to in subsection (1) also arise before the opening of insolvency proceedings, in particular if one of the contracting parties requests the opening of insolvency proceedings against its own assets or in the event of a reason to open proceedings (contractual termination),
2. that those transactions referred to in subsection (1) are also subject to contractual termination for which the claims to delivery of the goods or the provision of the financial service become due before insolvency proceedings are opened but after the point in time determined for contractual termination,
3. that, for the purposes of determining the market or stock exchange price of the transactions,
a) the date of the contractual termination takes the place of the date of the opening of insolvency proceedings,
b) the substitute transaction can be effected in accordance with subsection (2) sentence 2 no. 1 before the end of the twentieth working day after contractual termination insofar as this is necessary for the purposes of preserving value,
c) a point in time or period of time between the contractual termination and the end of the fifth working day following either of these is decisive rather than the point in time referred to in subsection (2) sentence 2 no. 2.
(5) The other party may bring the claim for non-performance only as an insolvency creditor.