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Reform of partnership law - What applies to GbR, oHG and KG?

The reform of partnership law in §§ 705 ff. BGB and in the German Commercial Code (HGB) was passed by the Bundestag and Bundesrat on 25 June and serves the purpose of transforming the deviating interpretation of the law that has been made by the courts for some time into written law.

Not only was the civil law partnership (GbR) previously regarded by the law as a legal entity without legal capacity, so that the GbR itself could not acquire any rights or enter into any liabilities. The legal institution of ‘actio pro socio’ was also not previously regulated by law. In addition, the consequences of an ineffective shareholders' resolution in the oHG / KG differed greatly from the regulations for the GmbH or Aktiengesellschaft, although there was no comprehensible justification for this different treatment.

Today, we present the individual provisions of the amendment to the law that have applied since 1 January 2024:

Election of the GbR on legal capacity

The shareholders can decide whether to form a company with legal capacity or a company without legal capacity.

If the company is founded for the purpose of participating in legal transactions, it is a company with legal capacity and can acquire its own rights and incur liabilities.

However, the partners can still decide to form a company without this legal capacity. In this case, the company may only represent the legal relationships between the partners (so-called internal company, e.g. the driving or tipping community). However, if the object of the company is the operation of a business under a joint name, it is assumed that the company is to participate in legal transactions.

Election of the GbR via entry in the company register

Another new feature is that a GbR with legal capacity can be entered in a company register. The company register will then be introduced specifically for the GbR and kept at the local courts in the same way as the commercial register.

Entry in the company register is optional. In particular, the partners and their powers of representation must be reported to the register. Registration in the register must be carried out by all shareholders, i.e. not by the company itself and not by a managing director.

However, the voluntary nature of registration does not apply if the GbR wishes to acquire a property. This is because it must then be entered in the register in advance. The same applies if a GbR is to be listed as a shareholder of a GmbH in the GmbH's list of shareholders.

In legal transactions, the registered GbR is obliged to bear the addition ‘eingetragene Gesellschaft bürgerlichen Rechts’ / ‘eGbR’ or, if no natural persons are involved in the GbR, the addition ‘eGbR haftungsbeschränkt’.

Rights of the registered GbR with legal capacity

Election of the GbR on the seat

As was already possible with the GmbH, partnerships (GbR, oHG, KG with legal capacity) may now also include a registered office in their articles of association that differs from the actual place of management (so-called administrative headquarters). However, in order to benefit from this regulation, the company must be entered in the register.

Conversion of the GbR possible

In future, the GbR with legal capacity and registration can also be the legal entity of a merger, a demerger or a change of legal form. This ensures the identity of the company changing the register.

Representation rules in the register

When the company is entered in the register, the authorisation to represent the company is also entered. This creates a publicity effect, i.e. third parties can rely on the authorisation to represent the company as entered in the register.

Practical tip

Decide whether you want to register the GbR.

Advantages of registration:
Choice of registered office other than the registered office is possible.
Conversion of the legal form possible while retaining the identity.
Representation relationships result directly from the register.
Disadvantages of registration:
The GbR must also comply with the obligation to be entered in the transparency register.
Once the company has been registered, the registration cannot be cancelled until the company is liquidated.

Changes for the management of the GbR

The most important changes with regard to the management and representation of the GbR consist of the harmonisation with existing regulations for the oHG and GmbH. Thus, a distinction is now also made for the GbR between ordinary and extraordinary transactions with regard to management authorisation, whereas the managing director may also carry out extraordinary transactions when representing the company externally (in accordance with § 126 HGB).

Regulations on emergency management and the legal institution ‘actio pro socio’, which were previously recognised by case law but not regulated by law, have also been expressly included in the BGB.

Liability of the partners of the GbR

There are no surprises in terms of shareholder liability: The partners of the GbR continue to be personally and unlimitedly liable as joint and several debtors towards third parties. This liability was previously established by analogous application of Section 128 HGB. In the new law, the liability of the GbR partners is now expressly regulated based on the HGB standards.

What is new is that the shareholder's subsequent liability with regard to claims for damages has been limited: The departed partner is only liable if the breach of duty leading to damages also occurred prior to the partner's departure. This limitation of subsequent liability also applies to

However, the limitation of liability pursuant to Section 708 BGB has been cancelled without replacement. This provision had previously stipulated that the shareholder was only liable for the same degree of care in the fulfilment of the obligations incumbent upon him that he would exercise in his own affairs.

Consequences of the withdrawal of a partner from the GbR

The withdrawal of a partner from a GbR with legal capacity no longer leads to the automatic dissolution of the GbR. As previously regulated for the GmbH, the withdrawal results in the GbR being continued and the shares of the withdrawn partner accruing to the remaining co-shareholders.

The partners are of course free to expressly agree in the partnership agreement that the company will be dissolved in this case. However, if this provision is forgotten, the consequences are no longer as dramatic as before.

What is also new is that a shareholder can give notice of extraordinary termination of the company at any time for fixed-term partnership agreements. This was previously only possible for open-ended partnership agreements in accordance with Section 723 BGB. In addition, the shareholders should also be able to decide to dissolve the company with a 75% majority.

Resolution deficiencies in the oHG and KG

The legal reform also harmonises the legal consequences of defective resolutions for the oHG and the KG with the regulations for stock corporations.

For the AG, it is provided that shareholder resolutions that have not been passed properly, but without serious legal violations, can be contested until the expiry of a certain period. After this period has expired, all shareholders can then assume that the shareholder resolution is valid and can therefore be implemented. The resolution is only void in the event of a serious breach of the law.

In contrast, any type of erroneous shareholder resolution in a commercial partnership is void under the previous legal situation.

Increased liability of the limited partner

The question of whether the limited partner has paid his contribution in full is of great importance for his liability. This is because if the limited partner has not paid his contribution in full, he is personally liable for the shortfall. For this reason, detailed checks are carried out to determine whether a contribution once made has been refunded. Previously, the limited partner was able to point to the fact that the balance sheet was prepared without gross negligence and that he was also acting in good faith when withdrawing profits in accordance with § 172 (5) HGB. This excuse has now been cancelled without replacement.