The Federal Court of Justice sees no reason for limitation of liability
Shareholders with unlimited personal liability must also pay the costs of the insolvency proceedings in the event of the company’s insolvency. The Federal Court of Justice decided this in its judgment of November 21, 2021 (ref.: II R 69/22).
Personally liable partners are liable for all obligations arising from their business unless there are laws to the contrary. Nevertheless, case law often assumes that the costs of insolvency proceedings are not included in the liability of the personally liable partners. The BGH has rejected this legal opinion, according to lawyer Michael Rainer, contact person for corporate law at MTR Legal Rechtsanwälte
Insolvency administrator claims reimbursement of costs
In the underlying case, a real estate fund organized in the form of a civil law partnership (GbR) had taken out loans worth millions. When the fund got into economic difficulties, it could no longer service the loans. The bank called the loans due and, at their request, insolvency proceedings were finally opened over the fund. The insolvency administrator claimed that the shareholders would bear the costs of the insolvency proceedings in accordance with their shareholding quota.
The Zweibrücken Higher Regional Court had dismissed the insolvency administrator’s lawsuit, but he was successful before the BGH. The Karlsruhe judges made it clear that there was generally no justification for limiting the shareholders’ liability with regard to the assumption of costs for the insolvency proceedings.
Liability until the opening of insolvency proceedings
In principle, personally liable partners are liable for all obligations arising from their business. However, with the opening of insolvency proceedings, the power of disposal over the company’s assets is transferred completely to the insolvency administrator. Therefore, the liability of the shareholders can be reduced to the point until the insolvency proceedings are opened. This is comparable to a partner who has left the company and is only liable for liabilities until he or she leaves.
However, the BGH made it clear that the costs of the insolvency proceedings are not covered by this restriction. Because insolvency is a direct consequence of the shareholders’ actions.
The unlimited liability of the shareholders represents a high personal risk. It is therefore necessary to identify crises at an early stage and take measures to counteract insolvency.
MTR Legal Rechtsanwälte advises on corporate law.
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2024-02-19 22:26:24
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