1 Introduction
The usufruct is a legal construct that is used in various areas of corporate law.
It enables a share in a civil law partnership (GbR) to be used or held in trust for a third party.
This article will explain the legal nature of the trusteeship, its creation and termination, and the associated legal consequences.
2. Essence and legal nature of the trusteeship
The use trust is a form of trust in which the trustee not only manages the company share of a GbR, but also uses it. The trustee appears to the outside world as a shareholder, while the trustor remains the “real” owner of the company share. The legal nature of the trusteeship is complex in that it includes elements of both property law and the law of obligations.
In practice, the usufruct has proven to be an important tool to retain control of a share in a company, while at the same time allowing a third party to exercise the rights and obligations of a shareholder. It can be used, for example, in cases of inheritance or when transferring company shares to minors.
It is to be located in the vicinity of the usufruct right.
The nature of the trusteeship can be summed up as a “temporary transfer of full rights with a trustee bond”.
3. Appointment of the trusteeship
The trustee is appointed through a contract between the trustor and the trustee (beneficiary). This contract must contain the essential elements of the trust agreement, in particular the duties of the trustee and the rights of the trustor.
It should be noted that the appointment of the trustee does not automatically lead to the trustee becoming a member of the GbR.
Rather, a separate inclusion of the trustee in the company is required, which usually has to be legitimized in the articles of association or can be done by a unanimous shareholder resolution.
4. Legal Consequences and Legal Effect of the Utilization Trust
The trusteeship has a number of legal consequences that affect both the trustor and the trustee.
The trustee becomes a member of the GbR through the trusteeship and can thus exercise all the rights and obligations of a shareholder. For example, he can take part in shareholders’ meetings, vote there and receive profits from the company share.
The trustor, on the other hand, remains the owner of the company share and thus retains the right to dispose of the company share. For example, he can sell or inherit the share in the company. However, as a rule, he is not entitled to exercise the rights and obligations of a shareholder as long as the trust of use exists.
It should be noted in particular that during the period of trusteeship, the trustee is fully liable like a new shareholder. With the termination of the trusteeship, the trustee is liable in accordance with the principles of a retired partner from the GbR.
There is no direct liability on the part of the trustor in such a way that creditors could assert claims in addition to or in place of the trustee.
5. Cancellation and termination of the trusteeship
The usage trust can be revoked or terminated in various ways.
One possibility is termination by the trustor or the trustee. It should be noted that termination usually requires reasonable notice and termination by the trustee usually requires the consent of the trustor.
Another way to cancel the trusteeship is to dissolve the GbR. In this case, the trust of use ends automatically, since the share in the company to which the trust of use relates expires.
Furthermore, the lapse of time, fallback clauses, etc. can end the trust construction.
6. Conclusion
The trusteeship for a GbR company share is a complex legal construct that entails a number of rights and obligations for both the trustor and the trustee. It allows flexibility in the rights and obligations associated with a shareholding and can be a useful tool in a variety of situations. However, it also requires careful planning and advice from a knowledgeable person to avoid legal pitfalls.
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, Münster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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