DE: Dissolution of a GbR: When does company debt become statute-barred?

Feb 25, 2022 Benn-Ibler Rechtsanwälte

The claim for repayment of an unused advance on any lawyer's fees comes into existence subject to the condition precedent of receipt of the advance payment. In the event of the dissolution of the partnership under civil law (Gesellschaft bürgerlichen Rechts, GbR), the liability in the form of the repayment claim passes to the respective partners. In this regard, the German Federal Supreme Court (Bundesgerichtshof, BGH) further ruled that liability obligations of the shareholder of a dissolved company become statute-barred after five years even if the company debt is subject to a shorter statute of limitations.

In 2016, insolvency proceedings were opened against the client of what was then a lawyer’s GbR. The lawyer in charge then informed the client's legal expenses insurance company of the opening of the insolvency proceedings and the dissolution of the lawyers' GbR. The court proceedings, for which the legal expenses insurance paid an advance, were also discontinued. The client's legal expenses insurance now demands the return of the advance payment from the partners of the already dissolved law GbR. However, they refused to pay. Thereupon, in 2019, the legal expenses insurance obtained default summonses against the partners. The insurance company did not continue the proceedings until 2020. The former partners then raised a plea of statute of limitations.

According to the BGH, the claim for repayment of unused fee advances arises as soon as the advance payment is made and under the condition precedent that the claim for remuneration actually arises. In this case, the condition precedent for the repayment claim came into effect with the opening of the insolvency proceedings and the associated termination of the lawyer's contract.

In this case, the defendant, as a shareholder of the GbR, was also liable for the GbR's debts. The shareholder's debt regularly lapses after three years. However, a five-year special statute of limitations arises from Section 159 of the German Commercial Code (Handelsgesetzbuch, HGB) for the shareholder of a dissolved company. This applies even if the period of limitation for the shareholder's debt is shorter. Accordingly, the defendant cannot invoke a statute of limitations on his liability obligation within the regular limitation period. Only the five-year period was set in motion. This was suspended in good time by the order for payment issued by the plaintiff and again by the later transfer to the disputed proceedings.

BGH IX ZR 81/21 (16.12.2021)