What is 1956 company law

BGH, judgment of November 22, 1956 - II ZR 222/55

§ 139 HGB, § 1922 BGB

1. If a partner in a general partnership is inherited by 3 co-heirs upon his death and, according to the articles of association, each of these 3 co-heirs is free to join the company upon the death of their testator, the co-heirs will automatically each have a third share of the Company share of your testator, partner in the general partnership.

2. If, on the other hand, in such a case only a certain co-heir is permitted to join the company by the articles of association, he becomes a partner with the third part of the company share of his testator that is accrued to him, while the other two co-heirs are entitled to compensation in accordance with the articles of association the company receive a two-thirds share of the company share of their testator.

3. The compensation claim of the two co-heirs not admitted as shareholders can be excluded by the articles of association. In this case, the other partners are regularly obliged to grant the entered co-heir-partner a share in the company to the extent that the deceased had during his lifetime, while the entered co-heir-partner then to his other co-heirs at a corresponding share Compensation is required.

tenor

The plaintiff's appeal against the judgment of the 6th civil senate of the Higher Regional Court in Hamm on February 9, 1955 is rejected at the plaintiff's expense.

Offense

The parties are siblings. Her father was a member of two open trading companies. In the contracts of these two companies it was agreed that the death of one of the partners would result in the dissolution of the companyPlease select a keyword:
resolution
Dissolution of the company
society
did not result. It was also determined that every partner was entitled to appoint a biological child or his wife by testamentary disposition as his successor in the company, and that without such a provision, the company would be continued by the other partners with the widow of the deceased partner. Finally, the contract contained a provision according to which the widow who had entered society had the right, under certain conditions, to designate one of her children as her successor.

The father of the parties died on December 28, 1945. He had drawn up a joint will with the mother of the parties, in which the parents had declared each other to be heirs. The mother of the parties assumed this inheritance. On her death (March 28, 1948) she left a will. In this she had appointed her daughter (the plaintiff) as sole heir. At the same time, the obligation was imposed on you to transfer the shares in the two general trading companies to the defendant against payment of an amount corresponding to the new building value of 8/5 of the double house on Bü Straße ... / ... in four annual installments. The plaintiff subsequently complied with this transfer obligation. The parties then quarreled about the calculation of the amount to be paid for the retention of the shares. This dispute was settled by a settlement dated April 5, 1950. In this settlement, the defendant undertook to pay a further DM 48,943.57 plus interest in four annual installments and to pay DM 20,000 in 1954 without interest.

The plaintiff asserted that the defendant fell behind with the payment of the payment owed to him after the settlement in 1952. It obtained a payment and enforcement order against the defendant for DM 3,082 plus interest. After the defendant had lodged an objection to the enforcement warrant in good time, she filed an application with the action to maintain the enforcement warrant.

In the first instance, the defendant specifically challenged the plaintiff's statements that he was in default of performance. The district court canceled the enforcement order and sentenced the defendant to pay DM 3,082 plus interest.

The appellate court found that the joint wills of the parents of the parties had been ineffective because it was not written by hand but with a typewriter. The certificate of inheritance issued to the mother as sole heir was therefore withdrawn and a new certificate of inheritance was issued, according to which the father of the parties was inherited by his wife to 1/4 and by the parties to 3/8. On the basis of these new facts, the defendant is of the opinion that the basis for the settlement of April 5, 1950 is no longer applicable and that it is therefore null and void in accordance with Section 779 of the German Civil Code (BGB). The applicant contested this view; she is of the opinion that the mother became the sole owner of the company shares on the basis of the provisions of the articles of association after the death of the father, since the inheritance regulation after the death of the father was irrelevant for this. As a result, the originally incorrect assessment of the succession from the father had no influence on the conclusion of the settlement.

The higher regional court dismissed the action. With the appeal on appeal, which has been admitted by the appellate court, the plaintiff seeks to restore the first-instance judgment, while the defendant asks to reject the appeal.

Reasons for decision

I. The court of appeal is to be supported by the fact that the mother of the parties cannot have become a partner in the two general commercial companies after the death of the father on the basis of a legal transaction between living people. Such an assumption fails because the father did not enter into a binding obligation to his wife during his lifetime. Such an assumption also fails because the mother of the parties did not commit herself during her husband's lifetime to join the two companies as a partner after his death. The assumption of such an obligation would also have been necessary because no one can be obliged by a contract alone between the partners to join an existing company as a partner at a certain point in time.

II. The Court of Appeal found that when the settlement was concluded on April 5, 1950, the parties assumed that the parties' mother was the sole heir of her husband and thus had sole and exclusive interest in the two general partnerships. Accordingly, they would have continued to assume that in the event of their mother's death their mutual rights were determined exclusively according to the will of the mother as the sole heir of the father. These two assumptions have now proven to be wrong, since the defendant, as the legal heir of his father, is entitled to a joint heir to the deposition claim.

1.) In the absence of sufficient factual findings on the part of the court of appeal, it is not possible to deduce the ineffectiveness of the settlement of April 5, 1950 from the fact that the defendant as a legal co-heir of his father in addition to the other legal heirs at least 3/8 of the other estate - that is, apart from the father's social participation in the two general commercial companies - and that the ignorance of this participation at the time of the settlement must result in the ineffectiveness of the settlement under Section 779 of the German Civil Code (BGB). Because the findings of the appellate court do not reveal anything that the father left other - noteworthy - assets on his death apart from his social interests and that the assumption of the parties that the defendant did not participate as an heir in such a part of the father's property is the basis for the conclusion of the settlement.

In this situation, the judging Senate is obliged to comment on the question discussed by the Court of Appeal, in which way the legal succession after the death of the father has affected the social participation in the two general partnerships and what legal consequences this has for the Legal status of the defendant.

2.) On this point, the court of appeal states that the regulation made in the articles of association did not result in the fact that with the death of the father of the parties his wife would have succeeded him in the society without further ado, and not because she had not become the sole heir. As a result of the death of the father of the parties, this shareholder had left the company, with the result that the deceased and thus the community of heirs had the right to sub-division regulated in Section 738 of the German Civil Code (BGB). Accordingly, the defendant was involved in the company shares as a co-heir in the amount of 3/8 of the depreciation claim. This right to stratification could not be excluded by the articles of association alone.

The revision attacks these statements. She believes that the partnership agreement can regulate the successor to the shareholder directly in the event of his death and that a case that could trigger the creation of a compensation claim does not arise at all.

3.) The corporate law statements of the court of appeal are - this is to be admitted without further admission to the appeal - legally not correct. Moreover, they are also unclear because they do not reveal what legal fate the two companies suffered after the death of the parties' father. First of all, the decisive question is whether or not the mother of the parties became a partner in her capacity as co-heir on the basis of the provisions of the articles of association upon the death of the father. A deduction claim for the community of heirs according to § 738 BGB - such a claim for the testator is ruled out from the start - could only have arisen if a successor for the father did not join the companies and if the companies were continued by the other shareholders alone would be. In such a case, one could not speak of a participation of the individual co-heirs in the company shares in the amount of certain fractions of the depreciation claim. The depreciation claim is a purely contractual claim against the general partnership, which in this respect compulsorily excludes the acceptance of a participation in the company or the acceptance of the continued existence of the company's share.

4.) Since, according to the statements under I., the mother of the parties cannot have become a living partner on the basis of a contract, the only possibility here is that she has acquired such a position in her capacity as co-heir.

a) When examining this question, it must be assumed that the share of a partner in a general partnership is fundamentally non-transferable and inheritable. Such a share in the company can only be inherited if and to the extent that it is provided for and permitted in the articles of association (Siebert, articles of association and inheritance law in the general partnership S 19/20). If this has happened on a case-by-case basis and the share in the company is inheritable, the succession in a personal trading company is also generally regulated according to inheritance law aspects. With the death of the previous shareholder, the successor automatically becomes a shareholder in his place, on the basis of his right of inheritance, after the articles of association have opened up the possibility of inheritance through a corresponding provision (Düringer-Hachenburg-Flechtheim Komm HGB § 139 Bem 5; Schlegelberger- Gessler Komm HGB § 139 Bem 21; Staudinger-Boehmer Komm BGB 11th edition § 1922 Bem 162; Hueck DNotZ 1952, 554; Siebert op. Cit .; Liebisch ZHR 116, 130 ff). The legal situation here does not fundamentally differ in any way from that which is generally given in the case of succession. If the heir of the deceased partner is a sole heir who is also provided for in the articles of association as the successor of the deceased, the implementation of this inheritance does not cause any significant legal difficulties. With the death of the previous partner, the sole heir automatically becomes a partner in the general partnership in his place.

b) The situation is not that simple if the deceased partner is inherited by several heirs who, according to the articles of association, are allowed to join the company as successors to their deceased. In this case, the deceased's share in the company is also hereditary, so that there are basically no concerns about the succession of these individual co-heirs for reasons of company law. A legal difficulty arises here in the implementation of the succession, which is caused by the particularities of inheritance law on the one hand and the particularities of company law on the other. According to the current law of inheritance, several heirs are entitled to the estate in the form of community of heirs; they are all involved in the estate, but not in parts of the individual objects of the estate. This regulation of inheritance law is not compatible with the legal requirements of a general partnership. With regard to the fact that it is usually a personality-related working group and always a personality-related liability community, a community of heirs cannot be a member (RG DR 1943, 1224; Düringer-Hachenburg-Flechtheim Komm HGB § 139 Bem 15; Weipert RGRK HGB § 139 Bem 25; Liebisch ZHR 116, 134 f, etc.; see also RG DR 1943, 1228; aM Buchwald ZivA 154, 26 note 10). In this legal situation, an unrestricted application of inheritance and company law principles would mean that several heirs would not be able to acquire the company share by way of inheritance despite the inheritance of the company share provided for and permitted by the articles of association. It is understandable that the jurisprudence and the predominant view in the literature have declared this conclusion to be unacceptable (RG DR 1943, 1224; Düringer-Hachenburg-Flechtheim loc § 28 II, 2a; doubtful Siebert NJW 1955, 810). Because for this reason the inheritance of the company share as permitted by the articles of association cannot fail. In view of the peculiarities of the corporate law relationships, which only allow a special succession of the individual co-heirs in the shared company share of their testator and which have not been taken into account by the general succession regulation in the form of the community of heirs, this is also in accordance with the case law of the Reichsgericht and the predominant view of the literature - the assumption that here the general inheritance regulation of a collective succession in the form of the community of heirs must be withdrawn in favor of the permitted inheritance of the company share. This means that in the case of several co-heirs who, according to the provisions of the articles of association, are allowed to join the company as successors of their deceased side by side, a special legal succession occurs from the outset with regard to the deceased's share in the company, i.e. the co-heirs acquire and share this share in the company directly according to their participation in the estate accordingly, upon the death of their testator, they automatically become shareholders in proportion to their share in the company acquired in this way. In this legal assessment, the succession of several co-heirs approved as shareholders in a general partnership does not take place any differently than if a sole heir approved as a shareholder succeeds his testator.

5.) The real difficulty for the succession after a deceased partner arises when - as in the present case - several co-heirs inherit the deceased and only one of them is allowed as successor of the deceased in the articles of association. In this case, the provisions of the articles of association must first be linked again. You, and not the inheritance law, is solely decisive for who of the co-heirs can become a partner, i.e. for whom the share in the company is inheritable. This means that those co-heirs who are not provided for as successor partners in the articles of association cannot become partners because of their inheritance. On the other hand, for reasons of company law, there is nothing to prevent the co-heir, who is admitted as a partner, from joining. The only question that arises for him is whether his status as a co-heir is sufficient for him to be the full or at least partial successor to the testator in society. This question is essentially one of inheritance law because it depends first of all on his position under inheritance law as a co-heir.

The answer to this question is possible if one takes into account the cases in which the co-heirs are either all admitted as shareholders or, if the company continues to exist, are all excluded as shareholders.In the first case, the succession means that each co-heir, by virtue of his right of inheritance, receives a share of the deceased's share in the company corresponding to his share in the inheritance and automatically becomes a partner with this share. In the second case, the co-heirs do not become shareholders; rather, as a community of heirs, they receive a compensation claim under the law of obligations against the company, the amount of which is based on the provisions of the articles of association.

What applies to these two cases individually must apply accordingly if these two facts occur mixed with one another, as here. The co-heir who is admitted as a successor partner receives only part of his deceased's share of the company by virtue of his inheritance right, while the co-heirs who are not admitted as a successor to a partner receive a full compensation claim