Co-partners may be excluded from limited partnerships By judgment of 21.06.2011 AZ: II ZR 262/09 the German Federal Court of Justice (BGH) decided concerning the exclusion of a co-partner from a limited partnership.
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Cologne, AL ( December 5, 2012 - Cologne, Nordrhein-Westfalen ( prhwy ) December 4, 2012 - By judgment of 21.06.2011 AZ: II ZR 262/09 the German Federal Court of Justice (BGH) decided concerning the exclusion of a co-partner from a limited partnership.

Hence GRP Rainer lawyers and tax advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart conclude: The Supreme Court decided that a formal resolution by the other shareholders shall be necessary in addition to the notice to the exclude shareholders to make possible the exclusion of a co-shareholder from a limited partnership. In the opinion of the Supreme Court, this cannot be changed even if the partnership agreement contains provisions that the exclusion is possible by notice to the respective shareholders only.

According to the Commercial Code (HGB), the exclusion of a partner on reasonable grounds is basically allowed only by a court decision. The Supreme Court has now decided, however, that the company incorporation agreement may contain a provision that the exclusion of a member can be made effective by resolution of the other shareholders. Such a provision cannot in principle be objected. The decision shall be effective upon receipt of the exclusion notice by the excluded shareholder.

Moreover, the Supreme Court declares that the incorporation agreement of a limited partnership can also contain provisions that a shareholder (a partner) may ask for his / her withdrawal. This clause needed interpretation in case when the resignation was manifested through declaration by the other shareholders on reasonable grounds. This interpretation may entail that the excluded shareholder should have been presented a disclaimer. For this a company decision is necessary.

A limited partnership is a partnership legally comparable with the general partnership (OHG). The biggest and most significant difference from the latter, however, is that there are different types of shareholders, namely at least one general partner and at least one limited partner.

The number of shareholders of a limited partnership, that is, general partners and limited partners, may be determined arbitrarily, so that theoretically there may be as many as possible shareholders participating in a limited partnership. In this case, the provisions of the Civil Code and the Commercial Code apply.

The liability of limited partners for the debts of the company is generally limited only up to a predetermined amount of liability (deposit). The limited partner makes his contribution when he/she joins the company. The general partner, by contrast, is liable for the company's debts personally and without restrictions.

If you want to learn the basics of a limited partnership, you should seek help from a lawyer working in corporate law. He / she can advise on various issues of liability of shareholders and assist in making a decision to enter into a limited partnership, as well as on any questions about the exclusion of individual shareholders from the Company.


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Categories: Law

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