1. Introduction to the legal institution of sub-balance sheet liability in GmbH i. G.
With the lifting of the ban on prior encumbrance, a limited liability company in the process of being founded (i. G.) is now also able to start its general business activities as early as the founding phase.
If business activities are started before entry in the commercial register, the situation can arise that at the time of entry the share capital is no longer sufficient to cover the liabilities already established.
For this case, the Federal Court of Justice (BGH) created the legal institution of sub-balance sheet liability. This legal development by the highest court serves as compensation for the abolition of the ban on prior encumbrance.
The legal institution of sub-balance sheet liability is pure internal liability. The claim from sub-balance sheet liability can therefore only be made by the company. be asserted against the shareholders (not via “damaged” contractual partners directly against the shareholders).
2. The conditions for the emergence of a liability under the balance sheet
In principle, the triggering of a liability under the balance sheet requires the establishment of liabilities that exceed the amount of the paid-up share capital. The shareholders of the GmbH must have approved the start of business. In this case, the liability also extends to partners who subsequently join the company. The decisive point in time for the creation of a liability under the balance sheet is the entry in the commercial register. At this point in time, the assets must be at least equal to the share capital. If this is not the case, the sub-balance sheet liability is triggered.
3. Nature and Scope of Liability
The shareholders of the GmbH are liable for the difference between justified liabilities at the time of entry in the commercial register and the paid-up share capital.
The shareholders are liable for the aforementioned difference in proportion to the respective share of the shareholder.
Shareholders who entered the company later, but before it was entered in the commercial register, are also pro rata liable.
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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