Liability (company law)

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Under liability is understood in company law in Germany that once marriage Do the shareholders of a company for the company's debts.


With the function as a partner is automatically connected his liability for the liabilities of the company. Corporate law distinguishes between two different liability structures, the partnership and the corporation . As a rule, only the company's assets are available to the creditors of a corporation (Section 272 (1) sentence 1 HGB , Section 1 (1) sentence 2 AktG and Section 13 (2 ) GmbHG ). If the shareholders have paid their capital contribution in full, they are free of liability. This also applies to the limited partners in a limited partnership ( Section 171 (1) HGB). However, this limitation of liability in the case of a stock corporation (AG) and a company with limited liability (GmbH) is not an essential feature of a legal person , but a statutory exception for AG and GmbH; Company and private assets of the shareholders are to be strictly separated . In the case of partnerships ( open trading company (OHG), limited partnership (KG), BGB companies and sole proprietorships ), the partners are also unlimitedly liable with their private assets; The exception is the limited partner in a limited partnership. The partners liable with their private assets are therefore also called personally liable partners .

Extent of liability for personally liable partners

The liability of personally liable partners from § 128 HGB is direct, primary, unlimited, accessory and jointly and severally.

  • Immediately : the company creditor can stick directly to the partner and does not have to wait for the partner to compensate for the loss at a later date.
  • Primary : the creditor can contact the shareholders immediately and does not have to make claims against the company first.
  • Unlimited : the liability is unlimited amount, in particular, this also the liability of the private assets of the shareholder is detected.
  • Accessory : the liability of the partner depends on the existence and extent of the company's debt.
  • Jointly : all general partners are liable for the debts of their company as a joint debtor , then the creditors that after § 421 para. 1 BGB at his pleasure to every shareholder is entitled to.

Shareholder liability before establishment

Before the company is founded (and before it is entered in the commercial register ), there are special liability mechanisms for the shareholders. The corporations are in the foreground of law and jurisdiction . In the case of the GmbH, the founders of the "pre-founding company" are treated like shareholders in a civil law company. As long as the pre-GmbH exists in the next stage and is not entered in the commercial register, the acting parties are liable as personally liable partners according to § 11 Paragraph 2 GmbH. This also applies to the AG in accordance with Section 41 (1) AktG. Anyone who acts on behalf of the AG before registration is personally liable, several as joint and several debtors.

Liability of new and departing shareholders

If a partnership takes on new partners, they are liable for existing liabilities ( Section 130 HGB). The law aims to prevent confusion between old and new shareholders about old and new debts. Retiring partners are still liable for corporate debts that arose before their departure. In favor of departing shareholders, there is a limitation period of 5 years for liabilities that have arisen up to then ( Section 160 (1) sentence 1 HGB). The prerequisite is that claims against the shareholder in a manner specified in Section 197 (1) No. 3 to 5 BGB have been established or a judicial or official enforcement act is carried out or applied for.

See also

Individual evidence

  1. Tobias Wagner, Die Untreue des Gesellschafter ... , 2010, p. 126
  2. Christian R. Schmidt, Die OHG / KG and public company , 2010, p. 330 ff.
  3. Götz Hueck, Corporate Law , 19th edition, 1991, § 15 III 4