Act on the Modernisation of Partnership Law (MoPeG) – the most important changes for practice

Special challenges for GmbH & Co KG, OHG, and GbR

The GbR law (partnership under civil law) is realigned within the system of commercial and non-commercial partnerships, recognising its status as a legal entity. In addition, the Companies Register, comparable to the commercial register, has been introduced. The GbR remains a fundamental form for various purposes, from family pools to construction joint ventures.

Legal capacity and liability

The law distinguishes between legally capable GbRs (§§ 706-739 BGB) and non-legally capable GbRs (§§ 740-740c). The legal capacity of a GbR allows it to acquire rights, build assets, and enter liabilities, ending the principle of joint ownership (§ 713). Enforcement of the company's assets requires a title against the company (§ 722). The partners are personally liable for the company's liabilities, both new and existing (§ 721, § 721a).

Representation and management

Active representation allows for joint or individual representation, while passive representation requires individual representation (§ 720). A shareholder's power of representation may be withdrawn for an important reason, such as gross breach of duty or incompetence. Exclusion from management does not affect representation power.

Shareholdings and meetings

Shareholdings and voting power are determined by the agreed shareholding structure (§ 709), based on the value ratios of contributions. The system of fixed and movable capital shares must be maintained. The actio pro socio extends to third parties (actio pro societate, § 715b). The principle of unanimity applies to resolutions of shareholders' meetings of partnerships (§ 714).

Resolution nullity and avoidance

The new regulations include protections for minority shareholders. Majority resolutions amending the treaty can be challenged. Nullity applies if statutory provisions or articles of association are violated (§ 110-115 HGB). Actions must be brought against the company, with exclusive jurisdiction at the district court where the company is registered (§§ 114, 113 para. 1 HGB-neu).

Arbitration clauses

Arbitration clauses must meet minimum requirements: consent of all shareholders, information flow, participation in arbitrator selection and concentration of deficiencies at the arbitral tribunal. Actions against defects in resolutions have effect against all partners (§ 113 (6) HGB).

Withdrawal of a shareholder and succession

In cases of inheritance, the GbR with legal capacity provides for the withdrawal of the deceased partner (§ 723 (1) no. 1), allowing continuation without the deceased or their heir. Transfer of shares to an heir requires a provision in the articles of association (§ 711 (2) sentence 1 BGB). An heir has a right of termination (§ 724) and personal, unlimited liability for debts if he remains in the company.

The MoPeG is a well-thought-out, coherent reform project that does justice to the liberal corporate image of the German constitution (Grundgesetz), which recently marked its 75th anniversary.

---

Johannes has been Managing Partner at FPS until recently. His areas of expertise cover the entire range of corporate, commercial and tax law, including litigation and dispute resolution, mainly in an entrepreneurial, international context.