Understanding Differential Liability in a GmbH: Overview, Consequences, and Relevance

Caution differential liability! Another personal liability for shareholders in a GmbH.

1. The differential liability in the GmbH: A brief overview

Differential liability is a specific liability concept that is used in the legal form of a limited liability company (GmbH). This article aims to provide a first understanding of differential liability in a GmbH, to explain the resulting liability consequences and to explain how and when this liability becomes relevant.

2. What is meant by differential liability in a GmbH?

The GmbH is a corporation in which the company’s assets are separated from the personal assets of the shareholders. The share capital of a GmbH is at least 25,000 euros and half of this must be paid in when the company is founded.

Differential liability means that the shareholder of a GmbH must personally take responsibility for the difference between the share capital and the value of the company’s assets at the time the GmbH was entered in the commercial register. In particular, if more extensive or high-risk activities were carried out by the company before the company was entered in the commercial register, there is a high risk of liability for the shareholders due to the differential liability.

Likewise, the differential liability for the difference between the value of his contribution in kind by the shareholder and the capital contribution to be made according to the articles of association/articles of association, § 9 GmbHG.

3. When does differential liability become relevant and asserted?

Differential liability can be asserted by various parties (depending on the situation), mainly:

a) creditors of society: If a GmbH becomes insolvent and the share capital falls below the legal minimum, the creditors can claim the partners for differential liability in order to satisfy their claims.

b) liquidator: In the event of insolvency, the insolvency administrator can assert differential liability towards the shareholders in order to meet the claims of the insolvency creditors.

c) Die Gesellschaft itself: Under certain circumstances, the GmbH itself can also claim differential liability from the shareholders, for example if it needs capital to fulfill its obligations or to continue its business.

This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.

I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. of the company and the (co-)shareholders. Feel free to contact me by phone or write to me.

I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.

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How does the assertion of differential liability by a GmbH’s liquidator affect the shareholders in terms of covering the company’s debts?

GmbH’s liquidator may also assert differential liability against the shareholders to help cover the company’s debts.

c) other shareholders: If a shareholder does not fulfill their capital contribution obligation or if they make an in-kind contribution that is overvalued, other shareholders may assert differential liability against them.

Overall, differential liability becomes relevant in situations where the company is facing insolvency or when there are discrepancies between the actual value of the company’s assets and the stated share capital or capital contributions.

4. Consequences of differential liability for shareholders

The consequences of differential liability for shareholders can be significant. If a shareholder is held personally liable for the difference between the share capital and the company’s assets, they may have to pay a substantial amount of money to cover the company’s debts. This can result in financial strain and potential personal bankruptcy for the shareholder.

It is important for shareholders to be aware of their potential liabilities and to carefully assess and manage the risks associated with their investment in a GmbH. By understanding the concept of differential liability and seeking professional advice, shareholders can take steps to protect themselves and minimize their exposure to personal liability.

5. Conclusion

Differential liability is a crucial aspect of the legal framework governing GmbHs. Shareholders must understand the implications and risks associated with this form of liability to make informed decisions about their investments. Seeking legal and financial advice can help shareholders navigate the complexities of differential liability and protect themselves from potential personal liabilities.