Pre-founding company

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The pre-founding company is the first stage in the founding process of a company, more precisely before the conclusion of the articles of association .

This is regularly a company under civil law (GbR), the purpose of which is solely to establish a company. It therefore ends with the conclusion of the notarized articles of association in accordance with § 2 GmbHG or determination of the articles of association according to Section 23 AktG (purpose of the GbR within the meaning of Section 726 BGB ).

If, by way of exception, the company's purpose is the operation of a commercial enterprise at this point in time, there is no GbR, but an open trading company (OHG) i. S. d. Section 105 HGB . Accordingly, the shareholders of the pre-founding company are fully liable with their private assets for the liabilities.

The pre-founding company must be strictly separated from the previous company . Rights and liabilities, if they are to be transferred to the previous company and later to the company to be founded, must be transferred to the previous company through a special legal transaction.

Liability of the agents

All parties involved are personally liable if the agent had power of representation, otherwise he is liable according to § 179 BGB as a representative without power of representation ( BGHZ 91, 148, 151).