Companies and their organsCrisisRestructuring and Insolvency

The liability of the Managing Director of a GmbH & Co. KG

In its judgment dated March 14, 2023 – I ZR 162/21, the Fede­ral Court of Jus­ti­ce (BGH) addres­sed the ques­ti­on of whe­ther and to what ext­ent the mana­ging direc­tor of a mana­ging limi­t­ed part­ner GmbH has a duty of care towards the KG (limi­t­ed part­ner­ship).


The defen­dant was the mana­ging direc­tor of U. GmbH, which, in turn, was a limi­t­ed part­ner of D. GmbH & Co. KG. Accor­ding to the part­ner­ship agree­ment, the exclu­si­ve right to mana­ge the part­ner­ship belon­ged to U. GmbH. The deb­tor was struc­tu­red as a public limi­t­ed part­ner­ship (Publikums-Kommanditgesellschaft). The deb­tor rai­sed inves­tor funds to make them available to the now insol­vent D. AG. D. AG was sup­po­sed to use the loans to acqui­re real estate. The deb­tor inten­ded to make dis­tri­bu­ti­ons to inves­tors with the agreed inte­rest pay­ments from D. AG. Accor­ding to the loan agree­ment bet­ween the deb­tor and D. AG, the debtor’s loan claims should be exten­si­ve­ly secu­red.

Con­tra­ry to the con­trac­tu­al agree­ment, the loan claims of the deb­tor were only par­ti­al­ly secu­red.

After the insol­ven­cy pro­cee­dings were initia­ted against the deb­tor, the plain­ti­ff insol­ven­cy admi­nis­tra­tor sought reim­bur­se­ment from the defen­dant for par­ti­al loan amounts. The Regio­nal Court ruled in favor of the plain­ti­ff. The defendant’s appeal was unsuc­cessful, so he pur­sued his goal of dis­miss­ing the lawsu­it with the per­mit­ted revi­si­on.

Decis­i­on of the BGH: Claim for dama­ges exists

The BGH affirms a claim for dama­ges by the plain­ti­ff against the defen­dant under Sec­tion 43(2) of the Ger­man Limi­t­ed Lia­bi­li­ty Com­pa­nies Act (GmbHG) due to negli­gent manage­ment since the KG (limi­t­ed part­ner­ship) falls within the scope of pro­tec­tion of the orga­niza­tio­nal and employ­ment rela­ti­onship bet­ween the GmbH and the defen­dant.

A pro­tec­ti­ve effect in favor of third par­ties is assu­med when­ever a third party comes into cont­act with the main per­for­mance as inten­ded, and the cre­di­tor has a legi­ti­ma­te inte­rest in inclu­ding the third party within the scope of the contract’s pro­tec­tion. Fur­ther­mo­re, there must be a need for exten­ding pro­tec­tion based on good faith (Treu und Glau­ben). Addi­tio­nal­ly, the inclu­si­on of the third party must be known or at least reco­gnizable to the party to be pro­tec­ted. In this case, all of these con­di­ti­ons are met.

The KG came into cont­act with the defendant’s ser­vices as inten­ded. The­r­e­fo­re, errors made by the defen­dant affec­ted the KG.

The inte­rest of the employ­ing GmbH was that the defen­dant should exer­cise pro­per manage­ment of the KG as part of his orga­niza­tio­nal duties. This is espe­ci­al­ly the case becau­se the GmbH is lia­ble for dama­ges resul­ting from the breach of the manage­ment tasks it had under­ta­ken for the KG.

The exten­si­on of con­tract pro­tec­tion was also jus­ti­fied by a need based on good faith. Due to the con­trac­tu­al pro­vi­si­ons, the defendant’s brea­ches of duty direct­ly affec­ted the KG. Con­se­quent­ly, the KG reli­ed on the defendant’s con­sci­en­tious and careful per­for­mance of his duties, par­ti­cu­lar­ly since the KG did not have the aut­ho­ri­ty to give ins­truc­tions to the defen­dant, which res­ted with the mana­ging GmbH.

These cir­cum­s­tances were also reco­gnizable to the defen­dant. The BGH now ans­wers the pre­vious­ly open ques­ti­on of whe­ther a mana­ging director’s lia­bi­li­ty to the KG under Sec­tion 43(2) of the Ger­man Limi­t­ed Lia­bi­li­ty Com­pa­nies Act (GmbHG) is appli­ca­ble even when the manage­ment of the KG is not the sole and essen­ti­al task of the GmbH, with a “yes.” In such cases, there is suf­fi­ci­ent reco­gniza­bi­li­ty for the mana­ging direc­tor regar­ding lia­bi­li­ty for brea­ches of duty toward the KG. The lia­bi­li­ty risk is also reco­gnizable when a GmbH and, the­r­e­fo­re, the mana­ging direc­tors per­form manage­ment duties in mul­ti­ple com­pa­nies. The KG can rely on the requi­red care and dili­gence from the mana­ging direc­tor in such cases as well.

Legal Assess­ment

Accor­ding to the BGH’s per­spec­ti­ve, a KG is included within the scope of the employ­ment con­tract of the mana­ging direc­tor and also within the orga­niza­tio­nal rela­ti­onship bet­ween the GmbH and the mana­ging direc­tor. The poten­ti­al lia­bi­li­ty of the mana­ging direc­tor to the KG does not depend on whe­ther the mana­ging direc­tor holds their posi­ti­on in a limi­t­ed part­ner GmbH or a gene­ral part­ner GmbH, nor does it depend on whe­ther the GmbH, in addi­ti­on to its invol­vement in a KG, also mana­ges other com­pa­nies.

Previous Post
Finality of the Insolvency Plan and Termination of Proceedings

Auch interessant

Flexible working hours

Employ­ers par­ti­cu­lar­ly app­re­cia­te it when they can deploy their employees fle­xi­bly. This…