In its decision of 23 September 2014 (Az. II ZB 4/14), the Bundesgerichtshof (BGH, German Federal Court of Justice) held that the case law and statutory provisions on emergency managing directors cannot be applied to the Gesellschaft bürgerlichen Rechts (GbR, German civil-law partnership).
Dispute regarding the emergency managing director
In the case at hand, one partner had been appointed as the sole managing director of the GbR. When he died unexpectedly, disputes arose among the remaining partners regarding authority to dispose of assets and similar matters. In the course of these disagreements, one partner applied to the competent Amtsgericht (local court) for the appointment of an emergency managing director. The partnership agreement reads in part:
"§ 6 Management and Representation 1. Management and representation are vested exclusively in partner F.M. To the extent he is unable to act, he shall — unless he appoints a third party as his representative by written power of attorney, which shall be at his discretion — be represented in his position as managing director by his wife, the person appearing under no. 2. Representation by other family members, with the exception of the person appearing under no. 2, is not possible. … § 9 Death of a Partner 9.1. The death of a partner shall not dissolve the partnership. It shall be continued with the heir(s) of the deceased partner, provided they are lineal relatives or adopted children and the remaining partners do not resolve, by a 3/4 majority, that they be paid out. …"
The emergency managing director – which rules apply?
The BGH takes the view that an emergency managing director cannot be appointed for a GbR, since § 29 BGB provides for this only in the case of associations (Vereine) whose board can no longer act without the appointment of an emergency managing director. The judges did not identify any regulatory gap that would justify applying this provision to the rules governing the GbR and therefore rejected such an application. Rather, according to the reasoning of the judges, there are clear statutory rules for a GbR if the sole managing director ceases to act. The death of the (sole) partner authorised to manage the partnership results in the joint management authority of the remaining partners (§ 709 Abs. 1 BGB). The fact that the remaining partners may block one another is inherent in joint management authority, which is the statutory default for the Gesellschaft bürgerlichen Rechts, and therefore does not constitute a regulatory gap, according to the judges at the Bundesgerichtshof.
Conclusion – No emergency managing director for a GbR
The upshot is that if the sole managing director ceases to act, the joint management authority of all partners automatically resumes.
Frequently asked questions
Frequently asked questions
Can an emergency managing director be appointed for a GbR?
No. By order dated 23 September 2014 (Az. II ZB 4/14), the BGH ruled that the appointment of an emergency managing director is not possible for a Gesellschaft bürgerlichen Rechts (GbR). § 29 BGB is tailored to associations and cannot be applied to the GbR, as there is no unintended regulatory gap.
What happens in a GbR if the sole managing director dies?
Upon the loss of the sole partner authorized to manage the company, the joint management authority of the remaining partners automatically revives pursuant to § 709 Abs. 1 BGB. All partners are then jointly entitled and obliged to manage the company.
Why does the BGH see no regulatory gap justifying an emergency managing director for a GbR?
The BGH argues that, in the event the sole managing director is unavailable, § 709 (1) BGB clearly provides for joint management authority of all partners. A potential mutual blockade among the remaining partners is inherent in this statutory default rule and does not justify an analogous application of § 29 BGB.
Which legal form is § 29 BGB (emergency appointment) actually intended for?
§ 29 BGB exclusively governs the emergency appointment of a board member of an association (Verein) when the required board members are missing and the association would therefore be unable to act. The provision cannot be applied to partnerships such as the GbR.
How should GbR partners contractually safeguard against the loss of the managing partner?
Since no emergency managing director can be appointed for a GbR, a clear provision in the partnership agreement is advisable, for example by designating a deputy, a succession clause, or a power-of-attorney arrangement. This ensures the GbR remains capable of acting even if the sole managing partner is unavailable and helps avoid disputes among the remaining partners.