Civil Law Society (Germany)

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The civil law society (abbreviation GbR or GdbR , also BGB-Gesellschaft ) is a merger of at least two legal subjects as shareholders who are mutually obligated by a partnership agreement, according to German company law in accordance with Section 705 of the German Civil Code (BGB) to promote a common purpose in the manner determined by the treaty.

The civil law partnership is the simplest and most general form of partnership under German company law. Several forms of company with more specific areas of application are based on it, such as the open trading company (OHG) and the limited partnership (KG).

Due to its broad characteristics, the GbR has numerous manifestations in practice. For example, associations of freelancers to form a joint practice or partnership are often organized in the form of a GbR. Project-related associations of construction companies as working groups or joint ventures are often BGB societies. Finally, informal associations such as flat- sharing communities , car pools and music bands as casual societies of everyday life regularly have the legal form of a GbR.

History of origin

Before the establishment of the German Empire , German partnership law was largely shaped by the General German Commercial Code (ADHGB) of 1861. This regulated in Art. 85-149 ADHGB the OHG as a basic type of partnership. This was characterized by the fact that several legal entities came together to operate a commercial trade.

Development of the GbR

Levin Goldschmidt

After the founding of the empire, the German legislature sought a uniform codification of German civil law. For this he began with the development of the BGB. The authors of the BGB, in particular Levin Goldtschmidt , wanted to keep the trading companies subject to commercial law, but also wanted to create a more general corporate form in the BGB, the GbR. This should be a subsidiary form of society that is only used if no more specific legal form can be chosen. So the legislator changed the commercial law so that all partnerships refer to the GbR as a basic type, whose regulations apply if the commercial law does not provide for more specific regulations. The authors of the BGB assumed that the practical importance of the GbR would be small compared to the trading companies.

Otto von Gierke

When developing the GbR, the authors of the BGB were based on the societas of Roman law . This was a purely contractual association. Based on this, the GbR was regulated in the first draft of the BGB of 1888 in the special law of obligations. The second draft from 1895 supplemented the GbR law with regulations on company assets, in which, at the suggestion of Otto von Gierke , he resorted to the figure of the collective hand from German law . The whole hand should consolidate the internal structure of the GbR. However, it was not expressly anchored in the law, but merely expressed as a motive in several regulations. The legislature deliberately left the specification of the whole hand to legal doctrine and practice. This resulted in a combination of Roman law and German law roots of the GbR.

Further development of GbR law

After the BGB came into force in 1900, the regulations on the GbR were only rarely changed by the legislature. However, the legal situation was largely perceived as unsatisfactory in jurisprudence. In particular, it was unclear how the historical roots of the GbR could be interpreted into a coherent concept, how the GbR could participate in legal transactions and how its shareholders were liable for their actions. It was also shown that the GbR had a much larger area of ​​application in practice than the authors of the BGB suspected.

In jurisprudence, there have been several efforts to bundle the rules on partnerships in one law, as was practiced in Swiss law, for example. This should simplify the regulatory structure and ensure that the rules are consistent. However, the corresponding drafts were not implemented. In contrast, the development of GbR law was significantly driven by case law. She ran an extensive legal training that regulates numerous aspects of the participation of the GbR in legal transactions.

Foundation, § 705 BGB

According to § 705 BGB, the establishment of a GbR requires a contractual amalgamation of at least two legal entities to promote a common purpose.

The partnership agreement has two functions: On the one hand, it establishes a contractual obligation between the shareholders. On the other hand, it creates an independent organizational unit. From the combination of both purposes it follows that the general law of obligations, in particular the right to disrupt performance , can only be applied to the articles of association with modifications developed through legal training, as it is not sufficiently tailored to the organizational component of the articles of association.

Conclusion of contract

Partners of a GbR can be natural and legal persons as well as legal partnerships. 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 conclusion of the articles of association is generally not bound to a specific form . For example, the establishment of a company can be agreed in writing, orally or through conclusive action .

As an exception, there is a formal requirement if the parties agree to this or if the contract contains an element which, taken in isolation, requires a specific form. This is the case, for example, if a partner is obliged by the articles of association to transfer a property or a right equivalent to a property , for example a heritable building right , to the GbR . Then the articles of association require notarial certification in accordance with Section 311b of the German Civil Code . If the shareholders violate this, initially only the agreement according to § 125 sentence 1 BGB, which 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 fully not legally competent , the social contract is void or form a party one to challenge qualifying lack of will has the contract from the outset may be ineffective. This legal consequence creates practical difficulties if the contract has already been implemented, for example by concluding legal transactions with third parties: The reversal according to the statutory system according to the right to enrichment would hardly be feasible in practice, since the necessary determination and evaluation of all asset shifts difficult to achieve. To solve this problem, the doctrine of the faulty society was developed in legal training . According to this, the defective articles of association take effect and can only be terminated with effect for the future. The same applies to incorrect amendments to an effective partnership agreement, for example when a new partner joins.

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

Corporate purpose

Any common interest that does not violate the legal system can be considered as the company's purpose. For example, the GbR can promote economic, charitable, religious or ideal interests.

Social purposes include, for example, living in an apartment as a shared flat and betting together as a syndicate . Associations of freelancers, such as lawyers , are also typically organized as a GbR. In contrast, the operation of a commercial enterprise according to Section 1 (2) of the Commercial Code (HGB) is not a permissible corporate purpose of a GbR : As soon as a GbR pursues such a purpose, it automatically becomes a general partnership ( Section 105 HGB) and is therefore subject to commercial law . In practice it can happen that a GbR becomes an OHG through the operation of a trade, but continues to operate as a GbR due to the ignorance of its shareholders. This does not change the actual existence of an OHG.

The shareholders must have the will to undertake a legally binding commitment to promote the common purpose. If there is no such will to be legally bound , it is not a question of society, but of mere courtesy . Whether there is a will to be legally bound is assessed on the basis of the circumstances of the individual case.

Due to the requirement of a common purpose, the GbR differs from the fractional community , in which several joint owners of one thing. Due to the fact that the partners must work together to achieve the purpose, the GbR continues to differ from partial legal relationships. This is a mutual contract in which one party provides a service and in return shares in the profit of the other. A frequent form of this type of business is the profit participation loan .

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 GBR arises internally, depends largely on the agreements made in the articles of association. In the external relationship, the creation of the GbR also requires that it is active externally. This is done by starting business.

Legal and party capacity of the GbR

Legal capacity

The term legal capacity describes the ability to bear rights and obligations. While the law expressly stipulates legal capacity for other legal forms, for example in § 124 HGB for the general partnership, there is no corresponding regulation for the GbR. Therefore, for a long time it was disputed in jurisprudence whether the GbR had legal capacity.

Traditional view

According to the traditional view that prevailed in jurisprudence until 2001, the GbR is a mere obligation between the partners, not the basis of a legal entity. According to this, the GbR is not legally competent. If the shareholders therefore act for society, they acquire rights and obligations for themselves and their co-shareholders. By virtue of the articles of association, they are linked to form a joint partnership that imposes restrictions on them in dealing with what has been acquired.

For this view, several provisions of GbR law were cited, such as § 714 BGB and § 718 BGB, which suggest through their formulation that the legislature only viewed the shareholders as legal subjects. The traditional view also argued with Section 736 of the Code of Civil Procedure , according to which enforcement in the company's assets requires a title that is not directed against the company but against all shareholders.

Group teaching

The traditional teaching is opposed to the group teaching, which the GbR sees as an independent legal entity and therefore grants it legal capacity.

For the legal capacity of the GbR, on the one hand, the practical use of this legal form is cited: Often, civil law companies act as independent legal entities in legal dealings. Furthermore, the legal consequences of changing shareholders can be better explained with group teaching. In addition, if its legal capacity is recognized, the GbR fits in more coherently with the concept of partnerships, as numerous companies with legal capacity are based on the GbR. Finally, the legislature has partially recognized the legal capacity of the GbR in more recent legislative projects, for example in Section 899a BGB, Section 162 (1) sentence 2 HGB, Section 191 (2) No. 1 of the Transformation Act and in Section 11 (2) No. the bankruptcy code . According to this view, the fact that other regulations speak against the legal capacity of the GbR is based on the fact that the legislature did not pursue a coherent concept in the development of the GbR, which is why these regulations must be corrected by interpretation.

The Federal Court of Justice (BGH) partially recognized the legal capacity of the GbR in its Weißes-Ross decision of 2001 and thereby joined the group teaching. This judgment was confirmed in later decisions by the BGH. However, the recognition of legal capacity only relates to the GbR that participates in legal transactions, i.e. to the external GbR . In contrast, the internal company has no legal capacity . This does not take part in legal transactions and can therefore only establish contractual obligations among the shareholders. Internal companies are often, for example, consortia , practice communities, user communities, building owners 'associations and spouses' associations .

Further developments

Since the BGH did not fully recognize the legal capacity in the decision of Weißes Ross, the extent to which the GbR can participate in legal transactions is disputed in jurisprudence.

In particular, it was often discussed whether the GbR can be entered in the land register as the owner of a property . Before the decision of Weißes Ross, only the shareholders were entered in the land register, because the GbR was largely lacking the land registry: Since, unlike the commercial companies, there was no register in which the GbR and its shareholders were entered, the entry of a GbR was in the land register as too indefinite. Following the Weißes Ross decision, at the end of 2008 the Federal Court of Justice granted the GbR land registry capability, so that it could be entered without naming its shareholders. In doing so, he wanted to make it easier for the GbR to participate in the land register, as the previous procedural law did not sufficiently take into account the recognition of the legal capacity of the GbR. However, in 2009 the legislature restricted this possibility by revising Section 47 (2) of the Land Register . According to this, the GbR can be entered in the land register, but its shareholders must also be named.

A GbR cannot be an administrator within the meaning of the Condominium Act , since the shareholders of a GbR cannot be identified in a sufficiently legally secure manner due to the lack of a GbR register.

The GbR is ultimately heritable .

Party ability

Pursuant to Section 50 (1) of the Code of Civil Procedure (ZPO), party capacity is linked to legal capacity. Since the GbR was not considered to have legal capacity until the decision of Weißes Ross, it was not party-capable, so that a lawsuit against a GbR had to be directed against its shareholders earlier. However, the recognition of the legal capacity of the GbR was followed by its recognition as party capable, so that the GbR can now sue and be sued under its name.

Relationship between the partners: The internal relationship of the GbR

The law links the participation in a GbR with some rights and obligations for the shareholders. To a large extent, these are at the disposal of the shareholders. These can therefore exclude, modify or create new legal rights and obligations in the articles of association.

Contribution obligation

In order to promote the common corporate 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. A contribution can also be made by a partner of the GbR making his labor available, for example by running its business. As far as the contract does not contain any regulation, the shareholders are obliged to make equal contributions in case of doubt according to § 706 BGB (1) BGB. This regulation expresses the principle of equal treatment applicable to internal relationships.

A contribution that has already been made is referred to as a contribution in law. If the contribution represents one thing, there are several possible regulation options for its whereabouts: On the one hand, it can be transferred to the assets of the GbR, so that it now belongs to the shareholders as joint assets (quoad dominium). The individual partner can then no longer dispose of his contribution. On the other hand, the matter can only be left to the GbR temporarily for use (quoad usum). After all, the shareholder can only bring in the value of the thing (quoad sortem). Here he remains the owner, but undertakes to treat the co-partners as part of the property of the GbR.

The prohibition of additional charges contained in § 707 BGB stipulates that the shareholders are not obliged to subsequently increase their contributions or to supplement their contributions if the GbR makes a loss. This is to ensure that the shareholder can assess the extent to which he has to make contributions when the contract is concluded. However, the shareholders are free to change the obligation to contribute by changing the articles of association. Furthermore, they can agree on an obligation to make additional contributions in the articles of association or make the amount of the contributions owed dependent on sufficiently precise variables.

The general right to disrupt services only applies to contribution payments insofar as it can be appropriately transferred to company law. For example, a shareholder cannot refuse to provide services under Section 320 of the German Civil Code (BGB) because another shareholder does not meet his obligation to contribute. Otherwise, the promotion of the company's purpose would be jeopardized, since each partner could refuse to perform because of the unlawful behavior of other partners. Also, Section 320 of the German Civil Code (BGB) cannot regularly fulfill its function as a means of exerting pressure against the non-performing party due to the large number of participants. Something different applies to companies with only two members, as Section 320 of the German Civil Code (BGB) is suitable for exerting pressure on the other partner. The right of withdrawal is superseded by the right of termination .

Managing directors

According to Section 709 (1) of the German Civil Code (BGB), the partners manage the business of their GbR together. This principle of overall management is at the disposal of the shareholders. For example, management can be transferred to individual shareholders to the exclusion of the others ( Section 710 BGB) or granted to each partner individually ( Section 711 BGB). In the latter case of individual management, the shareholders may object to the decisions of their co-shareholders. If a partner acts despite an objection, he can make himself liable for damages to his co-partners; the effectiveness of his action is, however, not affected by the objection in order to protect legal transactions.

The management authority generally entitles the holder to conduct all business matters. However, it does not give the right to undertake transactions that affect the structural basis of the company or that require an amendment to the articles of association. This includes the admission of a new partner. It can also be limited in scope, for example by ordering a reservation of consent for economically particularly important transactions. The rights and obligations of the shareholders are otherwise determined by the articles of association; subsidiary according attacks § 713 BGB the order right one.

The management authority can be withdrawn for good cause by resolution of the shareholders in accordance with Section 712 (1) BGB. Such is the case when financial irregularities occur. According to Section 712, Paragraph 2 of the German Civil Code, the managing partner may also resign the management authority for an important reason.

Participation in the decision-making process

The GbR forms its will through the resolution of its members. Resolutions are required in business management matters if they are exercised by several. They are also necessary for changes to the articles of association and for transactions that affect the fundamentals of the company.

In accordance with Section 709 (1) of the German Civil Code (BGB), resolutions are generally passed according to the principle of unanimity so that each partner can influence the company's actions. If the shareholders agree on a majority resolution, the value of the individual vote is assessed in accordance with Section 709 (2) BGB, in case of doubt, according to the number of shareholders. However, it is often agreed that the voting weight of the shareholder is based on the value of his participation in the GbR.

If the shareholders agree that decisions can already be made with a majority of the shareholders, there is a risk that this will disadvantage minorities within the GbR. In order to protect their interests, the jurisprudence limited the freedom of design in the social contract over a long period of time through the principle of certainty and the core area theory. The principle of certainty states that 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 a more flexible general interpretation of contracts. According to the still applied core area theory, there is a core of shareholder rights that may not be shortened by majority resolutions. These include, for example, property rights.

The spin-off prohibition contained in § 717 sentence 1 BGB stipulates that a shareholder may not transfer his voting rights or other rights relating to the administration of the GbR separately from his shareholder status. This serves to protect the co-shareholders from outside interference in the administration of the GbR as well as the protection of membership rights.

Right of control

According to Section 716 (1) of the German Civil Code (BGB), the shareholder has the right to obtain information about the management. To this end, he is allowed to inspect the GbR's books and papers. If this is not sufficient to inform the shareholder, he can also request information from the company.

The claim from Section 716 (1) BGB can be limited by the articles of association. However, according to Section 716 (2) BGB, such a restriction has no effect if the shareholder has a reasonable suspicion of irregular management.

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. In principle, contracting parties are liable to one another for intent and negligence in accordance with Section 276 of the German Civil Code . § 708 BGB limits the liability of the partner with regard to his obligations under the articles of association to the usual care . However, according to Section 277 of the German Civil Code (BGB), this does not release the shareholder from liability for gross negligence .

The legislature created the privilege of the partner because of the close relationship between the partners. However, this purpose is ineffective with the public company . Therefore, the case law does not apply § 708 BGB to these. The case law makes another exception for participation in road traffic, as there is no room for liability privileges there.

Loyalty Duty

The prerequisite for fruitful cooperation between the partners in the GbR is a mutual trust and loyalty relationship. Therefore, the shareholders are obliged to show special consideration in relation to each other and to the company. There is a dispute in jurisprudence about the dogmatic derivation of this duty of loyalty: According to some views, it is an expression of the general requirement of good faith ( § 242 BGB), which goes beyond this norm in its scope. According to another view, the duty of loyalty follows directly from the articles of association. However, there is agreement about the function of the duty of loyalty: it 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.

Depending on the interests of the shareholder, the duty of loyalty can result in obligations to act and to refrain from action, the violation of which can give rise to liability for damages. The unfaithful exercise of a shareholder right, such as filing an objection under Section 711 BGB, can also be ineffective.

The extent of the fiduciary duty in each individual case can largely be judged according to whose interests a right exists: If a shareholder exercises an altruistic shareholder right, such as management authority, he must align his actions with the interests of the company. When exercising a self-interested right, such as the right to terminate the GbR, the partner can put his interests above that of the company. The duty of loyalty only limits the scope of the exercise of rights and prohibits arbitrary or reckless action.

The duty of loyalty also works in relation to third parties. For example, it establishes non- compete obligations and confidentiality obligations for the shareholders. These business opportunities also have to be seized for society and not for themselves.

Entitlement to prizes

The partner has a right to share in the profits of the GbR from the articles of association. The content and enforcement of this claim are primarily determined by the articles of association. If this does not contain any corresponding regulations, the provisions of GbR law apply.

In accordance with Section 721 (2) of the German Civil Code (BGB), profit and loss are generally distributed at the end of a financial year. In the case of real estate companies, this only occurs when the company is dissolved. According to Section 722 (1) BGB, each partner has the same share of profit or loss. If only the share of profit or loss is specified in the articles of association, this distribution rule applies to both. The law thus underlines the character of a partnership, according to which all members participate equally in the society using all their strengths and skills.

Accounting

The accounting and bookkeeping regulations of the GbR result, among other things, from commercial law (e.g. the Publicity Act ) and tax law (e.g. the Value Added Tax Act ). The specific accounting regulations of the HGB do not apply to the GbR, as it loses its status as a GbR in the case of a factual commercial activity as well as in the case of an entry in the commercial register and is to be qualified as an OHG. However, a GbR is free to voluntarily keep commercial books and, if necessary, to draw up a balance sheet .

Actio pro socio

The actio pro socio is an instrument with which the company's claims against a partner (social claims) can be asserted.

In principle, the enforcement of company claims is part of the management, so that this falls within the responsibility of the managing partners. With actio pro socio, shareholders who are not authorized to manage the company can also assert claims. According to the prevailing opinion, this is a legal litigation status for the GbR. It serves the protection of minorities: If a partner authorized to manage a company does not assert a social claim despite being requested to do so, the co-partners can sue for the claim.

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

The GbR can use the names of all shareholders with an addition indicating the GbR; however, there is no obligation to do so. It does not run a company within the meaning of the Commercial Code , as this is reserved for merchants or trading companies in accordance with Section 17 (1) HGB .

Representation

As a company, a GbR only has the opportunity to undertake legally relevant acts through its deputy . In accordance with Section 164 (1) sentence 1 of the German Civil Code (BGB), representation requires that a person submits his or her own declaration of intent on behalf of the GbR with power of representation .

According to § 714 BGB, the power of representation follows the management authority. According to the legal model of the GbR, the shareholders are therefore only authorized to represent. However, you can make different agreements, such as sole power of representation.

When deciding on the power of representation, the shareholders must take into account the principle of self-organization , which is based on the right of representation of partnerships. This prohibits the transfer of the power of representation in full to persons who are not shareholders. The shareholders should have sufficient decision-making power, as they are fully liable for the actions of the GbR.

If the articles of association grant a partner sole power of representation, this can be withdrawn for good cause in accordance with Section 715 of the German Civil Code.

Attribution of fault

The fault of its organs is attributed to a GbR 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 GbR, the GbR 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

The partners of an external GbR are unrestrictedly, accessory, primarily, directly and jointly and severally liable with their private assets for the company's liabilities towards third parties .

The derivation of the shareholders' liability is controversial in jurisprudence. According to the previously prevailing doctrine of double obligations, it arises from the fact that the partner who establishes a liability represents all co-partners and thus also obliges them. In the meantime, the doctrine of double obligations is hardly supported any more, because if it were consistently applied it would be possible for the shareholders to limit their liability unilaterally. This could create a civil law company with limited liability (GbRmbH). This would contradict a basic principle of partnership: the personal liability of its shareholders. In the meantime, the accessory theory has prevailed, according to which the partner liability follows from an analogous application of § 128 sentence 1 HGB, according to which OHG partners are liable for the liabilities of their OHG. The BGH also expressly followed this view in the Weißes Ross decision. Section 129 of the German Commercial Code (HGB), which gives the shareholder the opportunity to invoke the company's rights of design and objections to his / her own claims, also applies analogously .

If claims are made against a partner by a creditor of the GbR, he has a compensation claim against the company from § 713 BGB in conjunction with § 670 BGB.

Analogously, the shareholders cannot limit their liability in accordance with § 128 sentence 2 HGB through an agreement in the articles of association. The case law makes an exception for real estate funds and building owner associations established before 2001 . For reasons of protection of legitimate expectations, the BGH allows them to invoke limitations of liability that they had justified prior to the change in case law by the BGH on January 29, 2001 by means of general terms and conditions or additions to their names. In addition, the shareholders' liability can only be reduced by an agreement between the company and its creditors. In the case of funds, this can even be done within the framework of terms and conditions. A limitation of liability to the liability insurance sum is permitted in the client contract; this is common with tax consultants , for example . However, please note Section 51a of the Federal Lawyers' Act .

The analogy to § 128 HGB does not apply to the internal company, since it does not appear as a GbR and it lacks legal capacity. Therefore, only the acting partner is liable for it.

Consumer property

In jurisprudence, it is controversial whether a GbR can be a consumer within the meaning of § 13 BGB. This is important for the applicability of consumer protection regulations to the GbR. According to § 13 BGB, a consumer is a natural person who concludes a legal transaction for purposes that can predominantly neither be attributed to their commercial nor their independent professional activity.

Since the wording of § 13 BGB limits the consumer status to natural persons, some voices assume that a GbR cannot be a consumer. In contrast, case law considers it fundamentally possible that a GbR can be a consumer. Section 13 of the German Civil Code only grants this property to natural persons, but this formulation only serves to exclude legal persons. If the GbR is only the corporate law association of several natural persons, then the consumer property penetrates them. On the other hand, consumer status is excluded if the GbR carries out a commercial or self-employed activity or if a partner is a legal person.

Termination of the GbR

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

resolution

If a GbR is dissolved, it remains as a legal entity. However, its corporate purpose changes: From now on, the GbR serves solely to prepare for its removal from legal relations.

The dissolution presupposes the existence of a reason for dissolution. Such can result from law or contract.

Lapse of time

If the company has entered into time, it will automatically be dissolved when the agreed time has expired. However, if the shareholders continue their GbR after the expiry of time, they extend it for an indefinite period in accordance with Section 724 sentence 2 BGB.

termination

According to § 723 BGB, the company can be terminated. If it has been received for an indefinite period of time, each partner can terminate at any time. A temporary company, on the other hand, can only be terminated if there is an important reason. Finally, the company can be terminated by a shareholder's creditors in accordance with Section 725 of the German Civil Code. This allows the creditor to access the dispute credit.

Furthermore, the company is dissolved in accordance with Section 726 of the German Civil Code (BGB) if the company's purpose is achieved or impossible . This reason for termination is important for companies that are formed for individual projects.

death

According to § 727 BGB, the death of a partner leads to the dissolution of the company. This is a result of the close ties between shareholders and society.

This fact of dissolution is often perceived as inappropriate by companies that support companies. Therefore, it is often waived by continuation clauses in the articles of association. In this way, it can be ordered that the company be continued without the deceased; his claims against the company, in particular the compensation claim, can consequently be asserted by his heirs .

Since the compensation claim can put a significant financial burden on a GbR, the shareholders can exclude the compensation in the articles of association without replacement. However, you can also agree that the heir has the opportunity to join the GbR instead of the testator. Such clauses are particularly common in business partnerships.

insolvency

According to § 728 BGB, the insolvency of a partner also results in the dissolution of the company. This allows the insolvency administrator to access the dispute credit.

Further reasons for dissolution

What is not mentioned in the law is the case that the company 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.

Finally, the shareholders can agree further reasons for dissolution in their articles of association and dissolve their company at any time by means of a general unanimous resolution.

confrontation

After the dissolution, the company comes to a dispute in accordance with Section 730 (1) BGB. The dispute serves to remove society from legal dealings.

The dispute procedure is primarily determined by the articles of association. If this does not contain any corresponding regulations , the procedure provided by law is used in accordance with Section 731 of the German Civil Code, which is supplemented by the provisions on the community of fractions. According to this, at the beginning of each partner in accordance with § 732 BGB, the objects that he has given the GbR for use are returned. Subsequently, in accordance with Section 733 of the German Civil Code, the company's creditors are satisfied and their contributions are refunded to the shareholders. For this purpose, the GbR utilizes its assets. If assets remain after this, these will be paid out to the shareholders in accordance with § 734 BGB; the amount of each partner's claim is based on their share of the company's profits. If, on the other hand, the company's assets are not sufficient to fulfill the obligations under Section 733 BGB, Section 735 BGB obliges them to compensate for this deficit.

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.

The BGB does not contain any regulation regarding the question of whether the entering partner is liable for old obligations of the GbR. According to the prevailing accessory theory, Section 130 (1) of the German Commercial Code (HGB) applies analogously to the GbR partner, according to which the person entering the company is liable for existing liabilities of the GbR. Section 130 (2) of the German Commercial Code (HGB) declares that agreements between the shareholders and third parties that differ from this are ineffective.

Retirement

Pursuant to Section 736 of the German Civil Code (BGB), the shareholders can agree in the articles of association that death, insolvency or termination do not lead to the dissolution of the GbR, but only the affected partner leaves the GbR. This protects the continued existence of your GbR.

Accumulation and claims of the departing

If a shareholder of a private company from growing its share of the fund in accordance with § 738 para. 1 sentence 1 BGB the other partners to. In return, they are obliged to free him from the communal debts and to give him back the objects that he has given the company for use. In order to compensate for the loss of his share in the company, the resigning person is still entitled to a severance payment. This is the amount that would have been due to him if the company had been dissolved. It is calculated on the basis of the value that the company would have if it continued. This value is determined using the discounted earnings method. To calculate this amount, referred to as the severance payment, the shareholders create a balance sheet . The claims for reimbursement of the deposits made and distribution of the generated surplus are added to the credit balance. The regulation on the severance payment is a dispositive right; Articles of association take precedence over the statutory regulation.

The balance to be drawn up by the liquidators is the basis of the final dispute and forms the end of the settlement. The requirements for the final invoice are determined solely by the specific requirements. With the establishment of the final account by the partners, a claim to the dispute credit of a partner becomes due. The entitlement arose when the membership was terminated and can be assigned and offset as a future entitlement at the start of membership. The claim to the dispute credit is directed against the GbR and is to be satisfied from the remaining assets. In the absence of assets in the GbR or in a two-person GbR, it can also be enforced directly against co-shareholders who are obliged to compensate. The GbR is terminated when it has no more assets. If further assets later emerged, the shareholders have to conduct another dispute.

If the assets of the GbR are not sufficient to cover the liabilities of the GbR and the deposits, the resigning party is obliged to pay for his share in the loss of the GbR according to § 739 BGB.

Liability of the departing partner

The resigning partner is liable for liabilities of the GbR analogously to § 128 sentence 1 HGB. According to Section 736 (2) of the German Civil Code (BGB), however, as with the general partnership (OHG) partner, liability is limited to five years.

Exclusion of a partner

If the articles of association provide that the company will not be dissolved in the person of a partner if a reason for dissolution occurs, the partners can exclude a co-partner from the GbR in accordance with Section 737 BGB. This assumes that there is an important reason in his person.

The shareholders can also contractually stipulate in which cases a partner may be excluded. According to the prevailing view, however, they may not in principle completely waive the requirement of an important reason, as the possibility of exclusion could otherwise be used as an inadmissible means of pressure. A corresponding right of exclusion can therefore be ineffective due to immorality under Section 138 (1) BGB.

In a company with only two partners, the problem arises that the exclusion of one partner would result in the dissolution of the company, since it results in the number of members falling below the required number of two. In order to avoid this consequence, which put the co-partner at a disadvantage, analogous to § 737 BGB, § 140 Abs. 1 S. 2 HGB the right to take over the company alone is granted.

literature

  • Peter Ulmer, Carsten Schäfer: Civil Law Society and Partnership Society: Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-68449-4 .
  • Herbert Fittkau: The GbR in sales tax law. Advantageous arrangements, legal protection, avoidance of risks . Erich Schmidt Verlag, Berlin 2008, ISBN 978-3-503-10667-7 .
  • Burkhard Katterbe: The BGB society in tax law . 2nd Edition. Otto Schmidt, Cologne 1999, ISBN 3-504-23031-2 .
  • Günter Seefelder: The civil law society (GbR) . HDS-Verlag, Weil im Schönbuch 2017, ISBN 978-3-95554-249-8 .
  • Wolfram Waldner, Erich Wölfel: GbR - OHG - KG: founding - operating - terminating . 8th edition. dtv Verlagsgesellschaft, Munich 2018, ISBN 978-3-423-51218-3 .

Web links

Individual evidence

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  2. Susanne Lepsius: §§ 705-740 , Rn. 7. In: Mathias Schmoeckel, Joachim Rückert, Reinhard Zimmermann (eds.): Historical-critical commentary on the BGB. Volume III: Law of Obligations Special Part . Mohr Siebeck, Tübingen 2013, ISBN 3-16-147909-2 .
  3. Susanne Lepsius: §§ 705-740 , Rn. 15. In: Mathias Schmoeckel, Joachim Rückert, Reinhard Zimmermann (eds.): Historical-critical commentary on the BGB. Volume III: Law of Obligations Special Part . Mohr Siebeck, Tübingen 2013, ISBN 3-16-147909-2 .
  4. Susanne Lepsius: §§ 705-740 , Rn. 14-40. In: Mathias Schmoeckel, Joachim Rückert, Reinhard Zimmermann (eds.): Historical-critical commentary on the BGB. Volume III: Law of Obligations Special Part . Mohr Siebeck, Tübingen 2013, ISBN 3-16-147909-2 .
  5. Susanne Lepsius: §§ 705-740 , Rn. 11-13. In: Mathias Schmoeckel, Joachim Rückert, Reinhard Zimmermann (eds.): Historical-critical commentary on the BGB. Volume III: Law of Obligations Special Part . Mohr Siebeck, Tübingen 2013, ISBN 3-16-147909-2 .
  6. Anja Steinbeck: basic cases for partnership law . In: Juristische Schulung 2012, p. 10. The doctrine of the factual society, which is no longer represented today, is different, according to which the appearance in legal dealings can suffice for the acceptance of a society; about Günter Haupt: corporate law . 3. Edition. Tübingen 1944, § 6.
  7. Carsten Schäfer: § 705 , Rn. 163. In: Mathias Habersack, Hans-Jürgen Papier , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
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  12. Carsten Schäfer: § 705 , Rn. 377-378. In: Mathias Habersack, Hans-Jürgen Papier , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
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  90. a b BGH, judgment of March 30, 2017, VII ZR 269/15 = Neue Zeitschrift für Unternehmensrecht 2017, p. 696.
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  106. ^ BGH, judgment of July 14, 1997, II ZR 122/96 = Neue Juristische Wochenschrift 12997, p. 3370.
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  110. ^ BGH, judgment of December 14, 1998, II ZR 360/97 = Neue Juristische Wochenschrift 1999, p. 1180.
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  112. ^ BGH, judgment of June 21, 1979, IX ZR 69/75 = Neue Juristische Wochenschrift 1979, p. 1987.
  113. ^ Ulrich Seibert: Nachhaftungsbegrenzungsgesetz - Liability clarity for medium-sized companies . In: Der Betrieb 1994, p. 461.
  114. Jessica Hanke: § 737 , Rn. 13. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  115. BGHZ 81, 263 . BGHZ 105, 213 . BGHZ 164, 98 .
  116. Jens Koch: Corporate Law . 10th edition. CH Beck, Munich 2017, ISBN 978-3-406-70537-3 , § 10 Rn. 32.