Overall representation

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The overall representation is the form of representation by several people. These are then only authorized to represent in community. In this case, the power of representation does not lie with an individual. The counterpart to general representation is the individual power of representation. If a representative is granted sole power of representation, he is also entitled to act alone without the involvement of other representatives.

use cases

Legal rule

The German law provides for the joint representation often used as a rule before, unless otherwise agreed in individual cases:

At the GbR, the current shareholders are authorized to represent. This also applies to the liquidation of the GbR or partnership (see also § 709 , § 714 BGB; § 125 Paragraph 2 HGB ). Even in the case of individual contractual representation, full representation applies again in the liquidation stage. This applies if there is no other provision in the contract and no other provision regarding the liquidators is included.

Contractual deviations

Even where the law defines full representation as the rule, there is usually the option of deviating from this general rule for individual cases. According to Section 35 (2) s. 1 GmbHG the general representation "unless the articles of association determine something else." According to Section 78 (2) sentence 1 AktG, collective representation only applies "if the articles of association do not provide otherwise". In the case of a company under civil law, according to 710 BGB a shareholder can be assigned the management, which then according to § 714 BGB means that he can also represent the company alone.

For a deviation from the legal regulation, it is necessary for GmbHs and stock corporations, as can be seen from the cited text passages, that the granting of a more extensive power of representation is already provided for in the statutes.

Sole power of representation

The greatest flexibility is achieved by granting sole power of representation or power of representation. In this case, the respective managing director or board member can represent the company alone. There may still be restrictions in the internal relationship. This means that the shareholders can issue content-related instructions or limits to a managing director, which he must observe (cf. Section 37 (1) GmbHG or Section 82 (2) AktG). However, these restrictions then only apply in the relationship between the manager and the company he represents. In relation to third parties, these restrictions have no legal effect, so that the managing directors can in principle represent the company in relation to third parties without restrictions despite internal restrictions (cf. Section 37 (2) GmbHG or Section 82 (1) AktG).

Fake general representation

In a further variant, an interim solution between overall representation and individual representation is chosen. In this case, the articles of association stipulate that not all managing directors must always act together, but that at least two managing directors must always sign together or one managing director and an authorized signatory. Even with such a solution, one can be more capable of acting than with an overall agency solution, in which all (i.e. even more than two) managing directors might have to participate. The decisive factor is the further hurdle in relation to individual representation that arises from the four-eyes principle.

Joint representation

If at least one of these persons does not submit the declaration of intent in question, the required power of representation is missing and the contract is pending ineffective, i.e. dependent on the approval of the person represented ( Section 177 (1) BGB). Even if individual representation has been agreed in advance, general representation will normally intervene again in the liquidation stage.

Lack of healing

In the event of termination, the declaration must be made jointly. The error cannot be cured . Only a new termination - without retroactive effect - is possible.

Under-representation

It is conceivable that all authorized representatives effectively grant sub-power of attorney to one or more of them . Contracts are then effective when they have been concluded "for the company, represented by ...". Accordingly, a lawsuit must be filed “for the company, represented by ...”.