In contrast to the partners of a GbR, the shareholders of a GmbH are generally not liable. This means that the liability of the partners is limited to the contribution that the partner paid in when the GmbH was founded. There are individual liability cases for the shareholders in connection with this payment.
Partners of a GmbH are not liable for the debts of the GmbH according to the legal regulations. The personal assets of the partners do not have to be used for the GmbH’s obligations.
The partner of a GmbH is liable for the performance of the share capital. The contribution to the cash foundation, i.e. the payment of a cash amount of at least € 25,000, must be made by the partners of the GmbH. If the partner does not make the agreed contribution or does not make it in full, he is liable to the company for the remaining amount. The same principle applies to contributions in kind. Contributions in kind can be certain items such as machines or real estate. If the contributions in kind have an objectively lower value, the partner must pay the difference.
Another possibility of liability exists if the company repays the share capital to shareholders. The shareholder must raise the share capital and pay it to the company. In retrospect, this may not be repaid to the shareholder. This principle is called the capital preservation requirement. If the share capital is nevertheless repaid to the shareholder, the shareholder is personally liable for payment of the wrongly received share capital. In the event of insolvency, the liquidator will use the shareholder to pay the share capital.
Another form of personal liability exists in the case of an existence destruction liability. It encompasses liability for an annihilating intervention in society. If a partner improperly interferes with the assets of the GmbH and the assets of the company are thereby reduced or exhausted, the GmbH has a claim against the partner in question. In this case, the shareholder violates his duty to protect the property interests of the corporation. If insolvency is triggered by the reduction in the company’s assets, the insolvency administrator will reclaim the equivalent value of the reduced assets from the shareholder.
There is also the possibility of personal liability if the partner has given a guarantee for the company’s debts or has declared that it will join. In the event of a loan being granted, banks often request that a debt be assumed or a guarantee from the GmbH’s shareholders to obtain additional collateral. If the company is unable to meet its financial obligations to the banks, the shareholders are liable for the company’s liabilities with their private assets.
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