Annoying partner
An annoying partner is a partner who has violated his duties as a partner to a considerable extent or who has become unacceptable for the other partners in a partnership through behavior that is damaging to business.
According to § 140 of the Commercial Code , he can be excluded by legal action or his voluntary resignation can be agreed in the course of negotiations. In both cases, he is entitled to an appropriate severance payment, which as a rule - unless otherwise stipulated in the company agreement - is determined by a depreciation balance sheet . The aim of the exclusion is to free the company from annoying shareholders and thus to improve the economic performance of the company. Indications for the annoyance can be:
- Pursuit of interests alien to society
- Violation of the non-compete clause
- Acting to the detriment of society
- Exceeding a withdrawal right agreed in the articles of association
- Violation of the duty of management
- improper behavior
An annoying shareholder is only present if the resigned shareholder has behaved in such a damaging way that he has seriously endangered the existence and the prosperity of the company through his disruptions to the business. From an objective point of view, the continued existence of the company or smooth business operations must be jeopardized. The prerequisite is that not only the remaining shareholders, but also third parties (e.g. business partners) have found the resigned shareholder a nuisance. This must be proven by the parties involved, d. In other words, there must be a fact that makes the unacceptability of the annoying shareholder obvious.
Another prerequisite is that the shareholder can influence the “weal and woe” of the company. A partner who is excluded from management under commercial law can therefore not be a nuisance. Even a negative capital account or excessive withdrawals are not sufficient for the nuisance, unless otherwise stipulated in the articles of association.
