Open trading company

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The open trading company (abbreviation: OHG or oHG ) is a legal partnership under German company law , in which at least two legal entities come together to operate a trade under a common company .

The OHG is based on the civil law partnership (GbR) as a basic type of partnership, which is regulated in § 705 - § 740 of the German Civil Code (BGB). Therefore, in principle, the provisions of the GbR apply to the OHG. However, priority is given to the special rules of the Commercial Code (HGB), which the OHG in Sections 105 - 160 and which is tailored to the needs of commercial transactions. In the general partnership, for example, there are fundamentally individual management and representation powers .

According to § 6 Paragraph 1 HGB, the OHG is a merchant by virtue of its legal form . Therefore, the special rules of commercial law apply to legal transactions of the OHG , in particular the regulations on commercial transactions . At the OHG, all partners are personally liable for the liabilities of their company. In return, the shareholders have a lot of leeway in the organization of their OHG, which regularly has a high credit rating.

In other legal systems there are company forms that have parallels to the OHG. This expertise includes General Partnership from the common-law -Rechtskreis, the Open Society of Austrian law, the general partnership of Swiss law and the Ordinary Partnership Company under Chinese law.

In practice, the OHG has long been one of the most common legal forms. However, the shareholders' fear of personal liability and the establishment of new corporate structures, such as the GmbH & Co. KG , are causing their increasing decline. In contrast, the general partnership law has not lost its practical importance, as in particular the law of the limited partnership (KG) in Section 161 (2) HGB refers to large parts of the general partnership law.

History of origin

Creation of the OHG law of the HGB

In German law, the provisions of the General German Commercial Code (ADHGB) of 1861 form the basis of today's OHG law. The OHG was regulated in Art. 85 - Art. 149 ADHGB. The legal norms of the ADHGB were based on the French Code de commerce from 1807; the Société en nom collectif regulated there served as a model for the OHG. In turn, it is based on organizational forms from northern Italy in the late Middle Ages.

The structure and content of numerous regulations of the ADHGB were adopted in the HGB, which came into force in 1900. Some changes were only of an editorial nature in order to adapt the provisions of the HGB to the BGB that came into force in the same year, in particular to the GbR regulated there as a basic type of partnership.

Further development of OHG law

For a long time the basic structures of the general partnership law remained unchanged. The first major revision took place in 1976. The legislature wanted to do justice to the fact that in practice open trading companies were established whose shareholders were corporations , so that contrary to the basic concept of the OHG, no natural person was personally liable. In the course of this, § 130a HGB and § 130b HGB were newly created, which made specifications for the case of bankruptcy .

In an amendment from 1980, the legislature created further provisions based on the law of the limited liability company (GmbH) with § 125a HGB and § 129a HGB .

Another change in the OHG law was made by the Commercial Law Reform Act of 1998, which revised the HGB in large parts. This concerned, for example, the regulations on the departure of shareholders, the continuation of the company and the possible areas of application of the OHG.

Influences of economic and legal practice

In addition to the development of the legal text, OHG law has a significant influence on Kautelar practice and case law. Numerous regulations of the general partnership law are at the disposal of the shareholders. This applies in particular to those who relate to the relationship between the shareholders. Therefore, the shareholders have a great deal of freedom in many design issues, which means that open trading companies in practice sometimes differ greatly from the basic model of the legislature. This, together with developments in commercial transactions, prompted the jurisprudence to conduct extensive legal training in some cases in order to achieve results that are relevant to the interests of the individual.

founding

General requirements for a partnership, Section 705 BGB

The OHG builds on the GbR in accordance with § 105 HGB. Therefore, their creation is basically based on the regulations on the creation of a GbR, to which Section 105 (3) HGB refers.

According to § 705 BGB, the establishment of a GbR requires a contractual amalgamation of at least two legal entities to promote a common purpose. Partners in a GbR can be natural and legal persons. Partnerships with legal capacity, such as the KG, can also participate as partners in an OHG. A minor can undertake by means of a articles of association if his legal representative agrees; As a rule, these are his parents in accordance with § 1626 , § 1629 BGB. Because of the particularly high risks that joining a company entails for a minor, the approval of the family court is also required in accordance with Section 1643 (1) BGB, Section 1822 number 3 BGB .

The law of the OHG does not provide for a specific form for the conclusion of the contract , so that it can generally be concluded informally. A formal requirement can, however, result from other legal provisions. If a partner undertakes, for example, through the contract to transfer property to the company, it follows from § 311b BGB that the contract must be notarized . If the shareholders violate this, initially only the agreement that triggers the formal requirement is ineffective. According to § 139 BGB, whether the entire contract is void is judged by whether the shareholders would have concluded the contract even without the agreement.

The failure of the conclusion of the social contract, such as a party not full legal capacity , the social contract is a form void or a party one to the dispute has qualifying will lack that OHG from Invollzugsetzung of the contract in accordance with the principles of is faulty society still treated as effective. This is intended to avoid the practically impracticable reversal of the company's business. The same applies to incorrect amendments to an existing partnership agreement, e.g. when a new partner joins.

If there is not even an ineffective conclusion of a contract within a group of people, the creation of an OHG cannot be faked through the doctrine of the faulty company. If the group nevertheless acts as an OHG in legal dealings or otherwise gives the appearance of being an OHG, it can, however, according to the doctrine of the sham company , be made liable like a OHG.

Specific requirements of the OHG, § 105 HGB

Operation of a trade

If the requirements mentioned so far are met, there is a GbR. This acquires the property of a general partnership if the common purpose of its shareholders is directed towards the operation of a commercial trade. According to Section 1 (2) of the German Commercial Code (HGB), this is a commercial enterprise which , according to its type and scope, requires a commercially organized business operation. A trade represents an independent , planned, long-term and outward-looking activity that is driven by the intention to make a profit and is not one of the liberal professions . Whether a trade is a trade must be assessed, mainly to operating purpose and -size .

Joint company and entry in the commercial register

In accordance with Section 105 (1) of the German Commercial Code (HGB), the OHG operates its trade under a joint company . According to Section 17 (1) of the German Commercial Code (HGB), a company is the name under which a merchant appears in business dealings. Since the OHG is a merchant, it is obliged to run a company in accordance with Section 17 (1) HGB. The shareholders are largely free to choose these, taking into account the company principles . According to § 19 Paragraph 2 Number 2 HGB, the company must, however, contain the designation general partnership or a generally understandable abbreviation for this ( OHG or oHG ) as a legal form addition, so that the legal form of the company is easily recognizable in legal transactions .

If all personally liable partners of an OHG are legal persons, they are summarized under the catchphrase Kapitalgesellschaft & Co. oHG . Such an OHG must also be given a designation in accordance with Section 19 (2) of the German Commercial Code (HGB), which describes the limitation of liability. This is intended to make it clear to legal transactions that no natural person is personally liable for the obligations of the OHG. Similar to the GmbH & Co. KG, it is common to use the legal form addition of the legal person, for example through the designation GmbH & Co. OHG or AG & Co. OHG . The legal form suffix OHGmbH , on the other hand, is not very widespread and, according to a judgment by the OLG Hamm in 1987, violates the requirement of company clarity.

The management of a company requires that the company is entered in the commercial register. Both the management of the company and the entry in the commercial register are, however, not prerequisites for the establishment of the OHG. According to § 106 , both represent their duties. The transfer of the register basically only has a declaratory effect. The entry in the commercial register has constitutive significance, exceptionally in the cases of Section 105 (2) HGB. According to this, a company that operates a trade that does not yet exceed the threshold of commercial trade can acquire the status of an OHG by entering it in the commercial register. The legislature created this option in 1998 so that small businesses and asset management companies can also be organized as OHGs. The attractiveness of voluntary registration as an OHG is limited, however, as the OHG law often has a more burdensome effect on society than the GbR law. However, since this option is also open to the KG in accordance with Section 161 (2) HGB, the small business owner can limit his personal liability by becoming a limited partner, which can make voluntary registration as a KG appear advantageous.

Personal liability

The unlimited personal liability of all shareholders towards the company's creditors as specified in Section 105 (1) of the German Commercial Code (HGB) is still not a requirement for a foundation. According to Section 128 Clause 1 of the German Commercial Code (HGB), this is a mandatory consequence of the establishment of an OHG. This feature distinguishes the OHG from the KG, in which at least one partner has unlimited personal liability and another has limited personal liability.

Development in the internal and external relationship

When a society comes into being, a distinction is made between internal and external relationships. The former regulates the relationships between the shareholders. When the OHG is created internally, depends largely on the agreements made in the articles of association. If in doubt, it already arises when the contract is concluded. In the external relationship, the establishment of the OHG according to § 123 HGB additionally requires that it is active externally. This is done by entering the OHG in the commercial register or by commencing business activities.

The distinction between the points in time of origin is important for determining the point in time from which OHG law is applicable to the association of the partners.

Entry of the OHG in the commercial register

According to Section 106 of the German Commercial Code (HGB), the shareholders must have their OHG entered in Section A of the Commercial Register. This is possible at the district court in whose district the headquarters of the OHG is located. According to Section 108 of the German Commercial Code, this is a personal duty of every partner. A violation of this obligation results in sanctioning by a penalty payment by the registry court according to § 14 HGB .

According to Section 106 (2) HGB, the registration must contain the surname, first name, date of birth and place of residence of each partner as well as the company name of the company, the place where it has its registered office and the domestic business address. The power of representation of the shareholders must also be registered. Also the entry or exit of a partner, the change of the company or the power of representation of a partner as well as the relocation of the OHG must be registered for entry in the commercial register according to § 107 HGB. This is to ensure that the information contained in the register remains up to date.

When registering an OHG, notary fees are incurred for registering in the commercial register as well as court fees in accordance with the cost regulations for registration with the register-keeping local court and the legally required announcement.

Due to the obligation to enter basic information about the OHG in the commercial register, § 15 HGB applies to business transactions. According to this, the entry in the commercial register of an OHG represents a strong legal certificate to protect business transactions. For example, according to Section 15 (1) of the German Commercial Code (HGB), a person cannot invoke a true fact that has not been entered and made known in the commercial register, although it should have been entered.

Relationship between the partners: The internal relationship of the OHG

The law links participation in a general partnership with certain rights and obligations for the shareholders. Pursuant to Section 109 Sentence 1 of the German Commercial Code, however, the statutory provisions only apply to the extent that the articles of association do not provide otherwise. Therefore, rights and obligations between the shareholders are largely at their disposal. As a result, the shareholders can exclude legal obligations in the articles of association and create new obligations. This finds its limit in the core area of ​​shareholder rights, which must not be shortened.

Like all general partnership law, the regulations regarding the relationship between the partners are based on the law of the GbR, so that the provisions on the GbR are applied on a subsidiary basis.

Contribution obligation

In order to promote the company's purpose, the shareholders must make contributions. Any contribution through which a shareholder wishes to promote the achievement of the company's purpose comes into question. The content and scope of the contribution obligation are determined by the articles of association. Frequent types of contribution are cash payments and the transfer of property or rights. However, a contribution can also be made by a partner of the OHG making his labor available, for example by running its business.

The individual partners are liable with their entire assets (full liability), so information on the amount of the capital contribution in the articles of association is just as optional as the proportionate participation of the individual partners in the company. If nothing is regulated, the shareholders have an equal share in the company in accordance with Section 706 (1) BGB.

Managing directors

According to Section 114 (1) of the German Commercial Code (HGB), every partner is obliged to manage the company. This includes almost all tasks that are related to the operation of the OHG, such as buying and selling goods as well as hiring and firing staff. Activities that are designated as basic business and relate to the basic organization of the OHG are not included in the management. These include, for example, the inclusion of shareholders, changes to the corporate purpose and the sale of OHG operations.

In accordance with Section 115 (1) of the German Commercial Code (HGB), unlike in the GbR, the principle of individual management applies. According to this, each partner may manage the business of the OHG without the involvement of his co-partners.

Pursuant to Section 116 (1) of the German Commercial Code (HGB), the management authority extends to business that is involved in normal commercial operations. Only in the case of extraordinary transactions is a decision required by all shareholders in accordance with Section 116 (2) HGB. In accordance with Section 116 (3) sentence 1 of the German Commercial Code (HGB), power of attorney may only be granted by all managing partners. This is the result of the far-reaching power of representation of the authorized signatory, which requires all shareholders to trust the authorized signatory. The principle of the individual management expresses the tailoring of the OHG to trade: It would be a hindrance if the OHG could only undertake legally relevant acts on the basis of a resolution by all shareholders. The sole management authority should therefore promote an efficient appearance of the OHG on the market. The co-partners can, however, prohibit a partner from taking a certain action by contradicting it. If the partner acts contrary to an objection, he is liable to pay damages to the other partners. However, this has no external consequences.

The shareholders are free to regulate the management authority deviating from Section 114 (1) HGB. Section 114 (2) of the German Commercial Code (HGB) contains an interpretation rule for typical agreements: If the contract assigns management powers to certain shareholders, the remaining shareholders are excluded from this. If the articles of association stipulate general management authority, the consent of all managing directors to an action is required, provided there is no case of imminent danger. If the shareholders want to make different regulations, they must take into account that the principle of self-organization that applies to partnerships requires that the management is carried out by shareholders, i.e. not by external parties; after all, the shareholders are fully liable for the actions of their company.

Pursuant to Section 117 of the German Commercial Code (HGB), a shareholder's authority to manage the business can be withdrawn by a court decision at the request of the other shareholders. This presupposes an important reason. Such is the case, for example, if the partner has committed a gross breach of duty or if he is incapable of proper business management. The fact that the management authority is only withdrawn by a court ruling protects the shareholder concerned on the one hand and the functionality of the company on the other.

Participation in the decision-making process

Section 119 (1) of the German Commercial Code (HGB) stipulates that a decision by all the shareholders is generally made by unanimous decision. The shareholders can also deviate from this by agreement in the articles of association. However, the jurisprudence limited the freedom of design in this regard for reasons of minority protection through the principle of certainty. According to this, the articles of association must specify precisely in which matters majority resolutions should be possible. The case law abandoned this principle in a 2014 ruling in favor of the general interpretation of the contract.

Right of control

Pursuant to Section 118 (1) of the German Commercial Code (HGB), shareholders may obtain information about the management so that they can effectively control the management. This right is of particular importance for shareholders who have no management authority.

Section 118 (2) HGB restricts the shareholders' authority to dispose of this claim. According to this, the limitation or waiver of this claim is irrelevant if there is a reason to assume dishonest business management. Due to the duty of the shareholders to be considerate of the company and the co-shareholders, the person requesting information must exercise his right with consideration for their interests.

Liability for breaches of duty

Hurt a partner is a power or a duty be considerate of the social contract and thus caused damage, he must these replace , as far as he is responsible for the breach. As with the GbR, the liability of the partner is limited to the usual care . The legislature privileged the partner in the internal relationship because of the close relationship between the partners.

Loyalty Duty

A prerequisite for a fruitful cooperation of the general partnership partners is a mutual trust and loyalty relationship. Therefore, the shareholders are committed to mutual loyalty. This obliges the shareholders to protect and promote the interests of society. They also have to give due consideration to the interests of their fellow partners in their actions.

The non-competition clause is a special form of the duty of loyalty : According to Section 112 (1) of the German Commercial Code (HGB), a partner may not conduct business for his own account in a commercial enterprise without the consent of the other partners or participate as a personally liable partner in a company in the same industry. If a shareholder violates a non-competition clause , the company can claim damages from him in accordance with Section 113 (1) HGB. Alternatively, it can require the shareholder to transfer legal positions acquired from the business to the company.

Claim for reimbursement of expenses

According to Section 110 of the German Commercial Code (HGB), a shareholder can demand reimbursement of expenses from the company if he voluntarily makes a property sacrifice in its favor. This can be done, for example, by making a liability to the company and by providing collateral for the benefit of the company. Losses suffered by the shareholder as a result of the management or from associated risks are also reimbursable. In particular, through the latter element, § 110 HGB extends the general claim for reimbursement of expenses from § 713 BGB in conjunction with § 670 BGB, which does not expressly provide for this legal consequence.

Capital share

The share of the assets of the individual partner in the OHG is referred to as the capital share. It is determined based on the value of the partner's initial contribution and is increased by additional contributions and profits. Losses and withdrawals from the company's assets reduce the capital share. The amount of the capital share is important for the distribution of profits, the right of withdrawal and for calculations when the OHG is terminated. In addition, the articles of association can use the share to regulate other matters.

Distribution of profits and losses

Partners have a right to participate in the profits of the OHG. In order to determine this, it must first be determined whether the OHG has made a profit or a loss. It must then be determined how these are divided among the shareholders.

The managing director salaries for the partner managing directors are not tax deductible as business expenses; they are added to the respective shareholder as an advance payment in the tax distribution of profits .

Preparation of the annual financial statements

The OHG determines its profit and loss in each financial year in accordance with Section 120 (1) HGB by preparing annual financial statements . This consists of a balance sheet and a profit and loss account .

As a merchant, the OHG is obliged to keep books in accordance with Section 238 (1) of the German Commercial Code (HGB) and to make its commercial transactions and the position of its assets evident in these according to the principles of proper accounting . This includes in particular the preparation of balance sheets for the establishment of the trade and for the end of each financial year, which represent the relationship between the assets of the OHG and its debts.

The preparation of the financial statements takes place through its preparation by the managing partners as well as through its approval by the entirety of the partners. The balance sheet is then signed by the shareholders in accordance with Section 245 Sentence 2 HGB.

Distribution of profits and losses

The distribution of profits and losses among the shareholders can be regulated in the articles of association. In practice, this is the normal case. If this is not the case, Section 121 of the German Commercial Code (HGB) applies , which states that initially each shareholder receives four percent of his investment as interest, provided that the profit is sufficient. If it is not enough, the percentage must be reduced so that the profit is sufficient for this interest. If the entire profit has not yet been distributed, the remainder is distributed according to heads.

Example: The partners Müllermann, Schulzhuber and Kniesel have contributed 200,000, 50,000 and 350,000 euros as a contribution to a general partnership, in which a profit of 51,000 euros is to be distributed. Initially, the shareholders receive 4% of their contribution. That is 8,000, 2,000 and 14,000 euros. This means that 24,000 euros of the profit have already been distributed. The remainder of 51,000 - 24,000 = 27,000 euros will be distributed on an individual basis, so that everyone receives an additional 27,000 / 3 = 9,000 euros. In total, Müllermann receives (8,000 + 9,000 =) 17,000 euros, Schulzhuber 11,000 euros and Kniesel 23,000 euros.

If an OHG incurs a loss, the deposits do not bear interest. The loss is then only distributed to the shareholders on a per capita basis. For this purpose, the loss shares are debited to the capital accounts.

Right of withdrawal

Shareholders may take contributions from the company's assets. As a rule, the scope and limits of this right are regulated by the articles of association. In comparison to the legal situation in corporations, the shareholders have a comparatively large amount of leeway. The right of withdrawal is assessed on a subsidiary basis in accordance with Section 122 (1) HGB. According to this, the shareholder may withdraw an amount equal to four percent of his share every year. If the OHG generates a profit in one year, the shareholder can also withdraw an amount that corresponds to his share of the profit. However, this right does not exist if the company is obviously threatened with damage from the additional withdrawal. In addition, according to Section 122 (2) HGB, withdrawals may only be made with the consent of the co-shareholders.

Participation of the company in legal transactions: The external relationship of the OHG

According to § 124 Paragraph 1 HGB, the OHG has legal capacity. So she can acquire rights and enter into liabilities under her company. She can also sue and be sued in court. Enforcement against the company assets of the OHG is only possible with a judgment against the company in accordance with Section 124 (2) HGB; a judgment against a single partner is not enough.

Representation

As a company, an OHG only has the opportunity to undertake legally relevant actions through its deputy . According to § 164 Paragraph 1 Clause 1 of the German Civil Code (BGB), representation requires that a person submits his / her own declaration of intent on behalf of the OHG with power of representation .

Pursuant to Section 125 (1) of the German Commercial Code (HGB), every shareholder has unlimited power to represent the company. In contrast to the GbR, individual representation is the legal model for OHG. The shareholders may deviate from this model. For example, they can exclude individual shareholders from representation or agree to general representation in accordance with Section 125 (2) HGB .

When deciding on the power of representation, however, the shareholders must take into account the principle of self-organization on which the right of representation in partnerships is based. According to this, at least one partner must be allowed to represent the company. The complete transfer of the power of representation to third parties who are not shareholders is therefore excluded.

The power of representation of the shareholders is one of the essential information about the company, which must be entered in the commercial register, in accordance with Section 106 (2) No. 4 HGB. The granting and expiry of power of representation are therefore mandatory. A violation of this obligation can lead to the application of a legal act of § 15 HGB in addition to the order of a fine .

The scope of the power of representation results from § 126 HGB. According to Section 126 (1) HGB, the scope of the power of representation extends to all judicial and extrajudicial transactions and legal acts, including the sale and encumbrance of land as well as the granting and revocation of a power of attorney. A restriction on the scope of the power of representation is ineffective against third parties for reasons of traffic protection in accordance with Section 126 (2) HGB. According to Section 126 (3) HGB, the power of representation can, however, be limited to one branch.

A shareholder's power of representation can be withdrawn by the other shareholders in accordance with Section 127 HGB if there is good cause for this. To protect legal certainty , this requires a court ruling, as does the withdrawal of management authority.

Attribution of fault

The fault of its organs is assigned to an OHG in analogous application of § 31 BGB. This applies to both contractual and non-contractual areas. If, for example, a partner violates the legal interests of a third party in the course of his work for the OHG, the OHG is liable for damages due to its own fault. The analogy to § 31 BGB is based on the fact that a general principle of company law is seen in the standard. According to a different opinion, the attribution takes place via § 278 BGB.

Accessory liability of the partners

According to Section 128 Clause 1 of the German Commercial Code (HGB), the shareholders of an OHG are unrestrictedly, accessory, primarily, directly and jointly and severally liable with their private assets. The joint liability of the partners distinguishes partnerships from corporations. It is based on the fact that, unlike, for example, the GmbH, there is no liability fund with the OHG that the shareholders may only dispose of under strict legal requirements to protect the creditors. It thus represents the price for the great freedom of design within society, but also gives it a comparatively high creditworthiness.

Unlimited

The partners are personally liable in full with their entire business and private assets for the liabilities of their OHG. In contrast to this, a limited partner in a KG is personally liable with all of his business and private assets, but only limited to the amount of his limited partner's contribution. A limitation of the shareholders' liability among the shareholders has no effect vis-à-vis third parties according to § 128 sentence 2 HGB. However, the shareholders can limit personal liability by agreement with the company's creditors.

Accessory

The accessory has the consequence that the liability of the partner is determined by the existence of the corporate debt. The partner is therefore liable for the liabilities of his company in the same way as the company. He is therefore not less liable than society, but not more strictly. Therefore, in accordance with Section 129 (1) of the German Commercial Code (HGB) , he can object to his own claims against shareholders to which the company is entitled. He can also raise objections to which he is personally entitled. Section 129 (2) and (3) of the German Commercial Code (HGB) continue to give the shareholder the right to refuse performance if the company can exempt itself from the claim against which the shareholder has made a claim through a right to structure such as contestation , set-off and withdrawal becomes.

It is controversial in jurisprudence what content the accessory liability of the partner has. According to the prevailing fulfillment theory, the content of the shareholders' liability corresponds to the liability of the company in order to protect the creditor as best as possible in accordance with the purpose of Section 128 sentence 1 HGB. Therefore, the shareholder must provide exactly the service that the OHG is also obliged to provide. For example, a partner can be called upon to remedy defects in a work of the OHG. According to the liability theory, the partner is only liable for monetary compensation. This view aims to protect the shareholder's freedom of action. According to both views, liability of the shareholder for monetary compensation only comes into question if it is a matter that only the OHG can provide. This applies, for example, to the contractual obligations to cease and desist under competition law . The same applies if the OHG agrees with its creditor that the partners should only be liable for monetary compensation.

Primary

The primary liability of the partners can be claimed without the obligee having to adhere to the company beforehand. In contrast to surety liability ( Section 771 BGB), partner liability is therefore not subsidiary.

Right away

The immediacy of the liability enables the obligee to make direct claims against the shareholder and to request the settlement of liabilities, regardless of whether the shareholder entered into the liability personally. According to § 129 Paragraph 4 HGB, however, a title against the company cannot be enforced against the assets of a partner.

Jointly and severally

According to § 421 sentence 1 BGB, joint and several liability means that each partner is solely liable for the entire debts of the company. The obligee can therefore freely choose which shareholder he makes use of and to what extent. According to § 422 BGB, fulfillment by one partner works for everyone. However, there is no joint liability between the company and its shareholders; it is merely an accessory joint liability.

Section 110 of the German Commercial Code grants the shareholder a claim for compensation against the company. Section 128 HGB does not apply to the claim from Section 110 HGB, as it only regulates the external relationship, which is why it does not apply to claims arising from the internal relationship. A transfer of the claim by law is not arranged in § 110 HGB. It is controversial whether such a legal session can be derived from an analogy to other provisions relating to cases of accessory liability. According to one opinion, Section 774 (1) BGB, a provision of the guarantee law, is used analogously. This would have the consequence that the shareholderwould benefit from accessory security fundsaccording to § 412 , § 401 BGB that have been ordered for the claim, such as a mortgage . According to the prevailing view in jurisprudence, however, no analogy can be formed, since the legislature deliberately waived a legal session, so that there is no unplanned regulatory gap required for an analogy. A compensation claim from § 426 Paragraph 1 Clause 1 of the German Civil Code (BGB)follows against the co-shareholders because of the joint and several debt. This reimburses the shareholder's expenses. However, he must have the amount credited that he must bear himself in relation to the other joint debtors.

If the partner approaches the partners like an outside partner, this is an external relationship, which is why Section 128 of the German Commercial Code (HGB) applies. However, it follows from the duty of loyalty to the other shareholders that he must primarily adhere to the company. Here, his entitlement is reduced by the share that he as a shareholder has to bear himself.

Termination of the OHG

If the shareholders want to end their OHG, they have to dissolve and wind them up.

resolution

If an OHG is dissolved, it remains as a legal entity. However, the company's purpose changes: From now on, the OHG serves solely to liquidate the company. This is intended to remove the company from legal transactions. The dissolution must be entered in the commercial register in accordance with Section 143 (1) HGB.

The dissolution presupposes the existence of a reason for dissolution. These are finally regulated in § 131 HGB. General reasons for termination are given in Section 131 (1) HGB. Section 131 (2) of the German Commercial Code (HGB) names additional reasons for dissolution for general partnerships in which no personally liable partner is a natural person.

General reasons for termination according to Section 131 (1) HGB

The company may be dissolved if a dissolution date specified in the articles of association occurs. If the shareholders tacitly continue the company after this date, it will be treated in accordance with Section 134 of the German Commercial Code (HGB) as if it were permanent.

Furthermore, the shareholders may decide at any time by joint resolution that their company be dissolved. The right of dissolution is limited by the loyalty obligation of the shareholders.

The company is automatically wound up when insolvency proceedings are opened against the company's assets. As a result, the treatment of the company's assets in accordance with Section 145 HGB is based on the Insolvency Code (InsO). Section 1 of the InsO stipulates that the company will henceforth be continued with the aim of satisfying the creditors. For this purpose, the OHG can be broken up or continued.

In addition, the Company may by a judicial designing judgment be resolved that a successful resolution action under § 133 was made towards HGB. Such a lawsuit can be brought by any partner. Its success presupposes that there is an important reason that justifies the termination of the OHG. Section 133 (2) of the HGB cites an example of serious misconduct by another shareholder. The fact that, unlike the GbR, the termination of the company by a shareholder is not sufficient, serves the legal security: It should be clear whether the OHG, which is different from the GbR tailored to participation in legal transactions, was dissolved or not. According to Section 133 (3) of the German Commercial Code (HGB), the shareholders' right to sue for dissolution cannot be restricted by the articles of association.

Not mentioned in § 131 HGB is the case that the partner loses all but one partner. Since a partnership must consist of at least two partners, falling below this minimum number automatically results in the dissolution of the company.

Special reasons for termination according to Section 131 (2) HGB

In accordance with Section 131 (2) of the German Commercial Code (HGB), an OHG in which no personally liable partner is a natural person will be dissolved if a resolution has become final and the opening of insolvency proceedings has been rejected for lack of assets. It will also be dissolved if the company is deleted due to lack of assets in accordance with Section 394 of the Act on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction . Section 131 (2) of the German Commercial Code (HGB) serves to align OHG law with corporation law in order to protect creditors, as the companies covered by it have similar interests.

completion

The liquidation procedure is regulated in § 145 - § 158 HGB, whereby the shareholders are free to make deviating regulations in accordance with § 145 Paragraph 1 HGB. Section 146 (1) of the German Commercial Code (HGB) stipulates that the liquidation is generally carried out by the shareholders as liquidators. The liquidators must be entered in the commercial register in accordance with Section 148 of the German Commercial Code.

Section 149 sentence 1 of the German Commercial Code (HGB) makes it the task of the liquidators to end current business of the OHG, to convert the assets of the OHG into money, to collect claims of the OHG and to satisfy their creditors. To do this, they firstprepare an opening balance sheet inaccordance with Section 154 of the German Commercial Code and then begin processing the OHG. Inprinciple, the liquidators areonly entitled to themanagement authority required for this in accordance with Section 150 of the German Commercial Code (HGB), since the OHG no longer participates in legal transactions to the extent that the individual management of the advertising OHG is necessary. The necessary basis of trust is often no longer given in the liquidation phase. For the same reasons, the liquidators only have overall power of representation in accordance with Section 149 Sentence 2 HGB; this cannot be effectively restrictedaccording to § 151 HGB.

The liquidation ends as soon as the company's assets have been divided up between the shareholders in a final distribution in accordance with Section 155 HGB. The general partnership is then ended.

Change of shareholders

admission

The admission of a new partner takes place through the conclusion of an admission contract between the previous partners and the new member.

In accordance with Section 130 (1) of the German Commercial Code (HGB), the person entering is liable for existing liabilities of the OHG. Section 130 (2) of the German Commercial Code (HGB) declares agreements between the shareholders to be ineffective towards third parties. Only in the case of an OHG that has arisen from a sole proprietorship can ancillary liability for the new shareholder in accordance with Section 28 (2) HGB be excluded by entering a restriction in the commercial register.

Retirement

Section 131 (3) HGB does not conclusively name several cases in which a partner leaves the OHG. They were incorporated into the law by the Commercial Law Reform Act of 1998. Until then, there were reasons for the dissolution of the OHG, which in practice were regularly waived by continuation clauses.

Reasons for leaving

A partner leaves the company when he dies. In contrast to the GbR, the death of a partner does not lead to the dissolution of the company, but allows it to continue. This is for legal security. Instead of the shareholder leaving the company, the shareholders can agree by including a successor clause in the articles of association that the testator does not leave the company, but that his heir moves up as a shareholder. According to § 139 Paragraph 1 HGB, the heir can request that he be granted the position of a limited partner in order to avoid the unlimited personal liability of the OHG partner.

Furthermore, a partner resigns from his general partnership if insolvency proceedings are opened against his assets. This is intended to protect the OHG and its shareholders from interference by an insolvency administrator in the company.

A partner can continue to terminate his / her position at any time. Termination rights follow from the law. In addition, the articles of association can provide for termination rights.

Furthermore, the private creditor of a partner can terminate his / her status as a partner in accordance with Section 135 of the German Commercial Code. In this way, he can have his compensation claim against the company seized in order to satisfy his claim. This right of termination cannot be made more difficult by the shareholders, since from their point of view it is a foreign right.

In addition, the partners can decide that a partner should be excluded from the OHG. According to § 140 HGB, a partner can only be excluded against his will by a court decision. For this to happen, there must be an important reason and the exclusion must be the ultima ratio .

Finally, the shareholders are free to agree further reasons for resignation in the articles of association. In practice, for example, clauses are widespread that lead to automatic departure when a certain age or incapacity for work occurs.

Accrual and severance pay

If a shareholder of, growing its share in the OHG in accordance with § 738 paragraph 1 sentence 1 BGB the other partners to. In return, the person leaving receives a claim against the company for a severance payment . According to this, the OHG must return the items that the company has left to the company for use, free him from joint debts and pay him what he would receive in the event of the dispute if the company had been dissolved at the time of his departure.

In order to simplify the determination of the amount of the compensation entitlement, book value clauses are often used in practice, according to which the book values ​​of the last or the next annual balance sheet represent the basis for calculating the entitlement. The remaining shareholders are ancillary liability for the compensation claim, since the obligee faces like a third party as a result of the departure of the company. From the loyalty duty of the shareholders, however, it follows that claims must primarily be made against the company.

Liability of the departing partner

According to § 160 HGB, the accessory liability of the shareholder for debts of the OHG remains in place even after the latter's departure, in order to protect the trust of the creditors in the personal liability of the shareholders. However, in order to give the partner the opportunity to free himself from liability, Section 160 of the German Commercial Code limits the period of additional liability: the partner is generally only liable for five years for obligations of the OHG. The period begins with the entry of the departure in the commercial register. The five-year limit does not apply, however, if the liability is established in a manner described in Section 197 (1) numbers 3 to 5 BGB or a judicial or official enforcement act is carried out or applied for. In accordance with Section 160 (2) of the German Commercial Code, the restriction does not apply if the shareholder recognizes the claim.

Example: Partner G leaves the OHG on December 28, 2003. This will be entered in the commercial register on December 31, 2003. On December 31, 2001, a tax claim arises against the OHG, which is due on December 31, 2008. On January 2, 2009, the tax office issues a liability notice against G. On December 30, 2009, the authorities enforce admissible against G.

Tax treatment of an OHG

Income taxes

If the OHG generates income from business operations within the meaning of the Income Tax Act (EStG), it is subject to trade tax . As a partnership, an allowance of 24,500 euros is deducted when determining the trade income . The trade tax to be paid by the OHG is offset against the income tax of the shareholders in accordance with the profit distribution key.

As co-entrepreneurs, shareholders of a OHG generate income from commercial operations in accordance with Section 15 (1) No. 2 EStG from their participation in the OHG . These are taxed in the case of natural persons as shareholders within the framework of income tax and in the case of partners who are legal persons within the framework of corporation tax. If the partner is a partnership, the share of the profit in the OHG flows into the profit of this partnership ("multi-storey partnership").

Also in the context of the income taxation of the shareholders, there is relief from the trade tax, which is a non-deductible business expense for the OHG. In the case of natural persons, the relief is provided by crediting 3.8 times the proportional measurement amount against income tax. In the case of legal entities and partnerships, the relief takes place by reducing the business income of the shareholder according to § 9 number 2 of the trade tax law by the profit share in the OHG.

The profit of an OHG is to be determined uniformly for all partners and then divided between the individual partners. A notice of assessment is issued about this . Further content of this assessment notice is the shares of the shareholders in the trade tax base amount, in the trade tax actually payable as well as in special matters such as donations or interest tax.

Special operating assets

Economic goods that are not subject to the general trade bond, but are used by the OHG, belong to the shareholder's special business assets I to which they are assigned. An example of special business assets I is the property used by the OHG that is wholly owned by a partner. Economic goods that are intended to serve the participation of a partner in the OHG belong to the special business assets II . The basic case of special business assets II is the loan that a shareholder took out to acquire the OHG participation.

value added tax

The OHG is an entrepreneur within the meaning of the Value Added Tax Act . The exchange of services between shareholder and company represents a special case, which can lead to the shareholder of an OHG also being a VAT entrepreneur. This can be the case in the case of remuneration for the transfer of use of assets of the special business assets to the general partnership or for remuneration which the general partnership pays to a partner for his work in the service of the company.

Inheritance tax

When a business is transferred by way of gift or inheritance to a successor, the special regulations for the transfer of business assets apply. The Federal Constitutional Court considers the applicable exemption rules to be partially unconstitutional and has obliged the legislature to adopt a new regulation by 30 June 2016 at the latest.

Number of companies subject to VAT in Germany

legal form Number of
companies in 2013
Open trading companies (OHG, oHG) 15,484
Limited liability company & Co. Open trading company (GmbH & Co. OHG, OHGmbH) 584
Joint stock companies & Co. Open trading company (AG & Co. OHG) 488
total 16,556

literature

  • Mathias Habersack, Carsten Schäfer: The law of the OHG . De Gruyter, Berlin 2010, ISBN 978-3-89949-807-3 .
  • Alfred Hueck: The law of the general partnership . 4th edition. De Gruyter, Berlin 1971, ISBN 3-11-089230-8 .
  • Lutz Michalski: OHG law: Commentary on the law of general partnerships. §§ 105-160 HGB . Heymanns, Cologne 2000, ISBN 3-452-24310-9 .
  • Karsten Schmidt: On the position of the oHG in the system of trading companies . Röhrscheid, Bonn 1972, ISBN 3-7928-0332-1 .
  • Günter Seefelder: Legal forms and model contracts in company law: The open trading company (OHG) . HDS-Verlag, Weil im Schönbuch 2016, ISBN 978-3-95554-253-5 .

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