I. Introduction and background

Until the Act on the Modernization of Partnership Law (Modernisierung des Personengesellschaftsrechts, “MoPeG”) came into force, the liability of a GbR (company constituted under civil law) shareholder for the company’s liabilities essentially resulted from the corresponding application of provisions from the German Commercial Code (Handelsgesetzbuch, “HGB”). Thus, the shareholder’s external liability for the company’s liabilities to the company’s creditors for the duration of the shareholder’s membership of the company was primarily based on the analogous application of § 128 HGB old version . According to this, the shareholders were personally liable to the company’s creditors for the company’s liabilities as joint and several debtors. However, the subsequent liability of a shareholder for the liabilities of the company upon his withdrawal from the company resulted from the application of §§ 736 para. 2 German Civil Code (Bürgerliches Gesetzbuch, “BGB”) old version in conjunction with 160 para. 1 HGB old version. According to this, the shareholder was liable to the company’s creditors for the liabilities of the company established up to the time of his withdrawal under certain conditions until the expiry of 5 years after his withdrawal. The claims of the departed shareholder for compensation and indemnification against the company were based on § 738 para. 1 sentence 2 BGB old version.
With the entry into force of the MoPeG on 1 January 2024, numerous changes have been made to the entire partnership law in various laws. As part of these far-reaching changes, regulations on the liability or subsequent liability of the shareholder of a GbR have been integrated into the BGB itself. In particular, §§ 721, 728 and 728b BGB have been newly incorporated into the BGB.
However, the MoPeG only contains partial transitional provisions that determine the specific date until which the old regulations continue to apply and the date from which the new regulations apply. The aforementioned provisions are not covered by this. The MoPeG also contains no provisions regarding the applicability of the new regulations to past circumstances. Against this background, the question becomes relevant as to whether and to what extent §§ 721, 728, 728b BGB also apply to circumstances that occurred before the MoPeG came into force, i.e. before 1 January 2024.

II. The new regulations on the subsequent liability of a shareholder

When the MoPeG came into force, §§ 721, 728 and 728b, among others, were newly introduced into the BGB. § 721 BGB regulates the external liability of the shareholder of a GbR. According to this, the shareholder is personally liable to the company’s creditors as joint and several debtor for the company’s liabilities in accordance with the former § 128 HGB old version. The content of § 721 BGB does not differ from § 128 HGB old version.
§ 728b para. 1 BGB contains provisions on the subsequent liability of a shareholder of a GbR who has left the company. According to this, after leaving the company, the shareholder is liable for the company’s liabilities to the company’s creditors that have arisen up to the time of his or her departure from the company a period of five years, provided that these liabilities fall due within these five years and the claim arising from the liability becomes enforceable or a judicial or official enforcement action is carried out or applied for. § 728b para. 1 BGB differs from § 736 para. 2 BGB old version in connection with § 160 para. 1 HGB old version in that § 728b para. 1 sentence 2 BGB limits the subsequent liability of the departed shareholder for claims for damages to a certain extent. The departed shareholder is only liable for compensation obligations after leaving the company if the breach of contractual or statutory obligations leading to compensation occurred before the shareholder left the company. Therefore, if the breach of duty leading to damages only occurs after the withdrawal of the shareholder, the withdrawing shareholder is not liable for this liability for damages.
§ 728 para. 1 BGB standardizes the claims of the departed shareholder against the company. According to this, the company is obliged to release the departing shareholder from liability for the company’s liabilities and to pay him an appropriate compensation with the value of his share. In comparison to § 738 para. 1 BGB old version, § 728 para. 1 BGB clarifies that the claims of the departed shareholder are directed directly against the company and not against the other shareholders. However, a direct claim against the shareholders remains possible via § 721 BGB. It is also clarified that the amount of the appropriate compensation is based on the value of the share held by the departing partner. The claim to the return of the items that the shareholder has left to the company for use, which was previously regulated in § 738 para. 1 sentence 2, 1st variant BGB old version, can no longer be found in § 728 para. 1 BGB.

III. Principle lex temporis actus

The principle of lex temporis actus is the guiding principle of intertemporal law. It states that the law applicable to an act or a legal relationship is the law that was in force at the time of the act or the creation of the legal relationship. In terms of content and effect, contractual obligations are therefore generally subject to the law that was applicable at the time they came into existence. The principle is intended to serve legal certainty and the protection of legitimate expectations by ensuring that existing legal relationships are not impaired by subsequently introduced regulations and that those affected are not retroactively bound by legal standards that did not exist at the time of the relevant act. However, statutory provisions may deviate from this principle, provided that the retroactive effect of the new law is expressly standardized in the respective statutory provision (transitional provisions).

IV. Decision of the Higher Regional Court of Hamm

The decision of the Higher Regional Court of Hamm (judgment of 17 June 2024) was essentially based on the following facts. The parties disputed the liability of a shareholder who had already left a GbR for existing loan liabilities of the GbR to other partners of the GbR.
The plaintiffs 1 (I GmbH) and 2 (Q GmbH), together with the defendant (G Immobilen GmbH) and Z-GmbH, founded the plaintiff 3, a GbR. The purpose of this GbR was the acquisition of a plot of land together with the properties located on this plot, including the refurbishment and subsequent resale of these properties. The defendant was also the managing director of this GbR. To finance the acquisition of the property above, the ancillary acquisition costs and the refurbishment of the properties, the plaintiffs 1 and 2 provided the GbR with two loans as agreed in the partnership agreement. Both the refurbishment of the properties and the profitable sale of these properties failed. As a result, the defendant subsequently left the GbR and resigned as managing director. The loans to plaintiffs 1 and 2 were not repaid. The plaintiffs then sued the defendant and demanded, among other things, repayment of the loans granted plus interest. The Regional Court upheld this action, which the defendant appealed.
The Higher Regional Court of Hamm had to decide whether the defendant, as a departed shareholder of a GbR who had already left the company, was liable to the plaintiffs as shareholder and lender for repayment of the loans granted. In this context, the court had to decide in particular whether the defendant was liable as a departed shareholder under the old law or under the new law introduced by the MoPeG.
In the opinion of the Higher Regional Court of Hamm, the provisions of §§ 721, 728 para. 1, 728b para. 1 BGB, as amended by the MoPeG, are to be used as the relevant provisions for the assessment of the defendant’s liability. In its reasoning, the Higher Regional Court of Hamm states that the decision on the applicability of new law in relation to the old law is based on the general rules of intertemporal law, provided there are no transitional provisions. In particular, the principle of lex temporis actus is decisive, according to which the law applicable at the time of the facts to be assessed is fundamentally relevant, insofar as the entire development took place under the old law.
In the case to be decided, however, despite the lack of comprehensive transitional provisions, the applicability of the new law to the conditions of entitlement that arose entirely under the old legal situation was to be assumed. On the one hand, §§ 721, 728, 728b BGB are to be applied from 01.01.2024 to all circumstances arising from this date. This follows from the fact that the legislator has only made partial transitional provisions, which deliberately do not cover §§ 721, 728, 728b BGB. When the law is systematically interpreted, this allows the reverse conclusion that it can be clearly inferred from the MoPeG, even without express clarification, that standards that do not fall under the aforementioned transitional provisions should already apply from 1 January 2024.
On the other hand, for cases in which a GbR shareholder’s subsequent liability for third-party claims was originally established before 1 January 2024 in accordance with §§ 128, 160 HGB old version, as well as for the claims of the shareholder in the event of withdrawal without notice, including for old liabilities, from 1 January 2024 §§ 721, 728b and 728 para. 1 BGB can also be used without restriction for legal assessment. However, the prerequisite for this is that §§ 723-728 BGB old version have been waived in the partnership agreement, as otherwise the continued application of §§ 723-728 BGB old version can be demanded in accordance with Art. 229, § 61 EGBGB. In turn, the continued application of §§ 723-728 BGB old version would generally lead to the dissolution of the company if the shareholder leaves without giving notice and thus prevent any subsequent liability.
The main reason for not applying the principle of lex temporis actus is that the ratio of this legal principle does not apply in the present case. The principle is intended to grant the parties involved in a legal transaction or contractual obligation legal certainty and protection of legitimate expectations with regard to the continued validity of the substantive legal situation. However, if the new law does not entail any changes compared to the previous law, the substantive legal situation continues to apply irrespective of the application of the principle. In this case, there is also no requirement to apply this principle. The provisions of the accessory liability of the GbR partner for company liabilities (§ 128 HGB old version analogously or § 721 BGB ), the five-year subsequent liability of the departed partner (§§ 736 Para. 2 BGB old version, 160 HGB old version analogously or § 728b BGB ) and the claims of a shareholder who has not left the company by giving notice of termination against the company (§ 738 Para. 1 S. 2 BGB old version or § 728 I BGB) have not changed in terms of substantive law with the introduction of the new standards. There is therefore no need, contrary to the wording and system of the MoPeG, to fall back on the principle of lex temporis actus beyond the final transitional provisions.

V. Outlook and consequences for practice

The decision of the Higher Regional Court of Hamm provides clarity with regard to the temporal scope of the old provisions on the liability of a GbR shareholder introduced by the MoPeG and at the same time clarifies the relevance of these new regulations for the legal practitioner. Accordingly, §§ 721, 728b, 728 BGB do not only apply to circumstances from 1 January 2024, but in certain constellations are already applicable to circumstances that occurred before 1 January 2024. In addition, the decision shows how to deal with statutory provisions that have recently entered into force in but for which no transitional provisions exist. It also clarifies that application of the principle of lex temporis actus is not required, particularly in cases in which the substantive legal situation under the old law is not significantly changed by the introduction of the new law or is merely (re)codified.
The ruling requires changes to partnership agreements that were agreed before 1 January 2024. Insofar as §§ 723 et seq. BGB old version have not been waived in such a partnership agreement, but the shareholders would like the provisions of §§ 721, 728b and 728 BGB to apply to them, an amendment to their partnership agreement is required. Otherwise, pursuant to Art. 229, § 61 EGBGB, the individual shareholder would have the option of asserting the continued validity of §§ 723 et seq. BGB old version. In order to avoid this, the partnership agreementcan either expressly waive §§ 723-728 BGB old version or refer directly to the new statutory provisions.