02. Feb 16

BGH on contingent liability of GmbH shareholders

If a partner of a GmbH (Gesellschaft mit beschränkter Haftung) [limited liability company] sells his ownership interest, he thus becomes excluded from contingent liability and is not liable for the other partners’ outstanding capital contributions.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A German limited liability company is liable to the extent of its share capital. It is not always the case that this is fully paid-up when the GmbH is established. If the company then becomes insolvent, a partner is liable for the portion of his capital contribution that has not yet been paid. Additionally, he may also be held liable for the capital contributions of the other partners that have not yet been fully paid.

This is not the case if he sold his stake in the GmbH beforehand. That was the decision of the Bundesgerichtshof (German Federal Court of Justice) in its ruling of May 19, 2015 (Az.: II ZR 291/14). The BGH held that a partner who left the company prior to the due date of a fellow partner’s outstanding capital contribution is not liable for this shortfall.

In the present case, the GmbH was founded by two partners, but only one of them paid their full capital contribution. The same partner later sold his stake in the GmbH to the other partner for one euro. Almost two years later, insolvency proceedings were brought against the GmbH. The insolvency administrator demanded payment of the remaining contribution from the partner who was by now the sole shareholder. However, the latter did not pay and enforcement proceedings also proved fruitless. As a consequence, the partner was forcibly excluded from the GmbH (forfeiture) and the insolvency administrator directed his claim towards the former partner.

The insolvency administrator’s claim failed before the BGH as it had done before the lower instance courts. The BGH stated that the demand for payment of the outstanding capital contribution could only be directed at those who were partners at the time the outstanding contribution fell due. The Court said that this was not the case here, as the partner had already sold his stake before the due date. It went on to state that the fact that this stake was transferred to his fellow partner, who was later excluded as the defaulting shareholder, was irrelevant; the only exception to this would be an abusive transfer, which may have been the case if, for instance, the insolvency had already been foreseeable at the time of the transfer.

Lawyers who are competent in the field of company law can advise on all matters pertaining to GmbHs.

For more informations: https://www.grprainer.com/en/legal-advice/company-law.html

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