Additional payment obligation

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The obligation to make additional contributions occurs in particular in corporate law and finance and generally relates to the legal or contractual obligation of an economic entity to settle certain subsequent liabilities .

Corporate law

As a funding obligation is defined as the obligation of a shareholder or comrades , proportionally the existing share capital increase or being liable for losses incurred. It can result from the law , the articles of association or the partnership agreement.

In this context, a distinction is made between two types of additional contributions. It is either limited (up to the amount of liability ) or unlimited:

  • In the case of the limited obligation to make additional contributions (for example, in accordance with Section 28 GmbHG ), a maximum amount to be paid is determined to compensate for the shortfall. This amount is guided by the amount of shares . But there can also be a caduction , but not a collective one.
  • In the case of the unlimited obligation to make additional payments (e.g. in accordance with Section 27 GmbHG), if it is not clear from the outset how much additional payment must be made, a shareholder can withdraw on the basis of the so-called right of abandonment . The company share is made available for auction by the shareholder. The company is entitled to the proceeds up to the amount of the additional payment to be made.

The cooperative also knows the limited and unrestricted obligation to make additional contributions ( Section 6 No. 3 GenG ). In the case of bankruptcy of a cooperative that are members regularly committed over the or the acquired shares to pay out additional payments to creditors' claims against the cooperative balance ( § 105 GenG).

The mutual insurance association (VVaG) can stipulate in the statutes that, in addition to the contributions, the members have to provide services that are dependent on the conditions specified in the statutes and have an economic effect like an increase in the contributions. The scope and collection of the subsequently requested contributions must be precisely defined in the articles of association ( Section 179 (2) VAG , Section 182 VAG).

At the BGB-Gesellschaft , according to § 735 BGB, the shareholders have to pay for the deficit according to the ratio according to which they have to bear the loss if the company's assets are not sufficient to correct the joint debts and to refund the contributions .

Finance

The obligation of a borrower to bring in additional securities or cash as collateral for a securities lombard loan if the lending limit for the collateral falls below the level of the loan being drawn upon is also referred to as the obligation to make additional contributions .

Fluctuations in the price of the securities on loan directly change the lending limit and thus also the credit limit . If the lending limit falls due to the exchange rate, without the credit limit being able to be adjusted accordingly, additional collateral rights of the terms and conditions are triggered. These are covenants that are listed in No. 13 para. 2 AGB-Banken and 22. Abs. 1 AGB-Sparkassen are comprehensively regulated. The customer is then obliged to pledge additional securities in order to adjust the lending limit to the credit limit. If the borrower does not comply with this request, the right of termination is automatically granted according to no. 13 para. 3 in connection with no. 19 para. 3 AGB-Banken or no. 26 para. 2b AGB-Sparkassen triggered (see negative declaration ). This regulation corresponds to the standard content of Section 490 (1) of the German Civil Code (BGB), which also extends to the deterioration in the value of collateral provided (see significant deterioration in financial circumstances ).

There is also an obligation to make additional payments when speculating with derivatives such as contracts for differences , options , swap transactions or futures contracts . Here the investor ( speculator , trader ) is subject to a high risk of price changes , because he initially has to invest less capital than is required later - for example when realizing losses for fulfillment . If the investor loses more money on a trade than is available in the portfolio , he is obliged to pay the difference to his respective counterparty ( broker , bank ) in the form of margin . Falls below the margin account a certain lower limit ( english maintenance margin level ), immediate additional funding obligation arises ( English margin call ) until the original margin ( English initial margin ).

A well-known example of the risk of the obligation to make additional payments is the peg of the Swiss franc to the euro , which was unexpectedly abandoned in January 2015. This resulted in large price differences, as a result of which many traders lost a lot of money due to the obligation to make additional payments. As a rule, one tries to absorb such unexpected price differences by setting a stop loss , but sometimes this does not take effect in the case of very large price jumps.

literature

Individual evidence

  1. ↑ Harald Bartl (Ed.), GmbH-Recht , 2009, p. 238
  2. ^ David Blake, Financial market analysis , 2000, p. 240
  3. ↑ 2800 euros stake, 280,000 euros loss. SPIEGEL Online, March 19, 2015, accessed on July 27, 2017 .