Commercial companies, as holders of rights and obligations, are liable for the obligations they assume with their entire assets. In addition to the company, its members may also be liable for its obligations. This article explains when and how members of commercial companies may be held liable, with reference to case law.
A commercial company is a legal entity whose establishment and organization are regulated by the Law on Commercial Companies (ZTD). Companies are divided into:
Partnerships: General partnership (OHG), limited partnership (KG), economic interest group.
Capital companies: Joint-stock company (AG), limited liability company (GmbH).
A commercial company acquires legal personality by registration in the commercial register, which gives it legal capacity (to hold rights and obligations) and business capacity (to create legal effects through its own declarations of intent).
The company can:
Member liability depends on:
Before gaining legal personality, a pre-company exists, formed by concluding the articles of association or adopting the statute and the founders subscribing all shares. The pre-company ends upon registration in the commercial register.
For obligations assumed on behalf of the company before registration, the acting persons and founders are jointly and unlimitedly liable. After registration, liability transfers to the company.
Generally, the company is liable with its entire assets for its obligations.
Members of a GmbH, shareholders of an AG, and limited partners in a KG do not generally answer for company obligations, except as expressly provided by law. Liability arising from legal transactions (e.g., guarantee, suretyship) falls under the Obligations Act.
If a member abuses the protection of limited liability, a piercing of the corporate veil may occur. Examples of abuse include:
In such cases, the member is jointly and unlimitedly liable with all their assets. Any creditor can bring a claim, regardless of whether the company can meet the obligation.
A claim can be brought by any creditor, regardless of whether the person was a member at the time the obligation arose or at the time of filing the lawsuit. The crucial factor is proving abuse of limited liability. During insolvency proceedings, claims can only be enforced by the insolvency administrator.
Differentiating between company liability and member liability is essential to:
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