DE: Extended liability period of a limited partner

Oct 13, 2021 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) was obligated to decide when, in the case of a reduction in the liability amount of a limited partner, the five-year period of extended liability under Section 160 of the German Commercial Code (Handelsgesetzbuch, HGB), analogous of the external liability for old liabilities, starts to run in the case of the opening of insolvency proceedings and to what extent this has an impact on the discharge of liability for the ancillary service.

The subject matter is a fund company in the form of a limited partnership (“GmbH und Co. KG”) in which a limited partner was involved with a liability sum of EUR 500,000. In 2005, he received dividends of EUR 90,000. In 2012, the liability capital was reduced to EUR 41,000. This reduction was entered in the commercial register on July 16, 2013. However, the resolution on the reduction of the liability capital was already known to the main creditors in December 2012. Insolvency proceedings were then opened in 2016. The insolvency administrator demanded that the defendant return the dividends and finally sued for payment of the EUR 90,000 in 2018.

The Court of Appeal dismissed the action on the grounds that the limited partner's external liability had already expired due to the expiry of the five-year extended liability period.

In this regard, the BGH ruled that in the event of a reduction of a limited partner's liability amount, his external liability for old liabilities is to be limited in time to the extent of the amount exceeding the new liability amount, according to Sec. 160 para 1 and 2 HGB analogous, Sec. 161 para 2 HGB.

Irrespective of the entry of the capital reduction in the commercial register, the five-year period of extended liability already begins with the expiry of the day on which the corporate creditor gained positive knowledge of the reduction resolution.

For the case at hand, this means that the extended liability period already expired in December 2017, as the positive acknowledgement of the main creditors in December 2012 can be seen as the beginning of the expiry of the period.

Also, with the expiry of the period of extended liability, the liability of the main claim as well as that of the ancillary claims depending on it ceased to exist according to Sec. 217 of the German Civil Code (Bürgerliches Gesetzbuch,BGB). Thus, the defendant also did not have to reimburse the requested pretrial legal fees.

BGH II ZR 38/20 (04.05.2021)