G: Loss participation in the case of a "contribution in arrears”

Sept 29, 2021 Benn-Ibler Rechtsanwälte

According to the Federal Supreme Court (Bundesgerichtshof, BGH), the contribution obligation still outstanding at the time of the departure of a limited partner is to be considered as a contribution in arrears according to Section 167 para 3 of the German Commercial Code (Handelsgesetzbuch, HGB) - irrespective of its due date.

In the present case, the plaintiff, a public limited partnership, claimed payment of a settlement deficit of EUR 7,340 from a former limited partner. It was settled in the partnership agreement that initially only 54% of the amount would be paid and the remaining 46% would be paid later by offsetting it against the distributable profit. An amendment to the articles of association made it possible for the management to demand a further 6% of the mandatory contribution to enforce tax interests. The remainder of the mandatory contribution could only be demanded by shareholder resolution. 

In principle, the following applies: If the limited partner has paid his mandatory contribution, he does not have to fear any obligation to make additional payments in the event of his departure, even if the capital share has become negative due to losses incurred. A full payment of the contribution thus excludes any liability for a deficit.

In this case, however, the BGH had to answer the question: What applies if the obligation to make a contribution has not been met in full? According to the HGB, this is a so-called "contribution in arrears", Section 167 para 3 HGB. In such cases, there may be a liability for a deficit and thus an obligation to pay on the part of the withdrawing partner.

In this regard, the BGH ruled that at the time of a limited partner's departure, outstanding contribution obligations constitute a "contribution in arrears" within the meaning of Sec. 167 para 3 HGB, irrespective of their due date. The liability of the withdrawing partner thus extends not only to the unpaid 6% (EUR 3,000), but to the remaining 46%. The company is thus entitled to the entire compensation deficit.

The BGH also sees - in contrast to the court of lower instance - no reason for a different assessment in the contractual due date provision. The purpose of the provision is to protect the shareholders, but no longer to release the withdrawing partner from a remaining contribution that is not yet due.

BGH II ZR 184/19 (23.02.2021)