Posted: 21 Mar. 2022 5 min. read

News on capital maintenance: liability of a third party

Overview

A third party becomes liable if she*he accepts payments from a company in violation of capital maintenance rules and thereby at least accepts that this company will suffer a definitive financial loss (OGH 6 Ob 61/21w).

Facts of the case

A GmbH granted a loan to the limited partner of a GmbH & Co KG. However, the GmbH (instead of the limited partner) subsequently repaid the loan to the GmbH. The limited partner was over-indebted in accounting terms both when the loan was granted as well as when the loan was repaid. Furthermore, the GmbH immediately forwarded the amount. The GmbH & Co KG, which has repaid the loan on behalf of its limited partner, could therefore neither obtain reimbursement from the limited partner nor from the GmbH.

The persons acting were aware of both the limited partner’s over-indebtedness in accounting terms and the origin of funds. Therefore, the GmbH & Co KG claimed damages from (i) the limited partner’s managing director, (ii) the GmbH granting the loan, and (iii) the managing director of the latter.

Capital maintenance rules also apply to GmbH & Co KG

Capital maintenance rules generally prohibit any value transfer to shareholders other than by way of dividends unless concluded at arm’s length terms. Capital maintenance rules apply to GmbH & Co KG by analogy if no natural person is a partner with unlimited liability. Consequently, the capital maintenance rules are violated if the GmbH & Co KG bears the debt of its limited partner, as in this case.

Third parties are in principle not addressees of capital maintenance rules

Addressees of capital maintenance rules are generally the company (here: the GmbH & Co KG) and its shareholders (here: the general partner and the limited partner). The management board of a contracting third party (here: the GmbH granting the loan) is therefore not directly addressee of capital maintenance rules. However, in certain cases (collusion and gross negligence) third parties may also be addressees of capital maintenance rules. In such cases, an obligation to repay exists only against the respective recipient of the payment (here: the GmbH granting the loan), but not against its governing body. The liability of the managing director of the GmbH granting the loan can thus only be derived from general tort law due to causing immoral damage.

Personal liability of managing directors for causing immoral damage

The managing director of the GmbH granting the loan accepted repayment of the loan by the GmbH & Co KG (instead of the limited partner who has received the loan). The GmbH & Co KG suffered a loss as it could neither obtain reimbursement from the limited partner (over-indebted in accounting terms) nor from the GmbH granting the loan (it immediately forwarded the repaid amount). Since the managing director of the GmbH granting the loan was aware of both the limited partner’s over-indebtedness in accounting terms and the origin of funds, the Supreme Court ruled that the managing director of the GmbH granting the loan was personally liable due to causing immoral damage.

Conclusion

The Supreme Court confirmed that capital maintenance rules apply by analogy to GmbH & Co KG if no natural person is a partner with unlimited liability. New  is that a third party becomes liable if she accepts payment from a company in violation of capital maintenance rules and thereby assenting accepts that the respective company suffers a definitive financial loss as a result.

To avoid personal liability, one should also comply with capital maintenance rules when receiving payments – especially, if the source of funds and the financial situation are known.


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Mag. Yvonne Gutsohn,LL.M.

Mag. Yvonne Gutsohn,LL.M.

Jank Weiler Operenyi RA | Deloitte Legal

Yvonne Gutsohn ist Rechtsanwältin bei Jank Weiler Operenyi RA | Deloitte Legal und Mitglied der Praxisgruppen Corporate/M&A und Private Clients. Ihre Tätigkeitssschwerpunkte liegen in den Bereichen Gesellschaftsrecht und M&A, insbesondere in der Beratung von Mandanten bei komplexen nationalen und multinationalen M&A-Transaktionen, Joint Ventures und allen Facetten des Gesellschaftsrechts und der Corporate Governance.