Daniel H ** is the sole owner of the registered sole proprietorship Daniel H ** - Hotel ** I eU
is in the business of registered the P ** Property Management GmbH , the sole shareholder with a fully paid capital contribution of € 36336.42 Stefan H **.
Daniel H ** a business lady and the P ** Property Management GmbH have been an atypical silent partner in the shareholders' agreement dated 08/30/2000 an atypical silent partnership agreed. In accordance with the provisions of this social contract are the result and the assets and liquidation rights of the silent partnership, the business lady to 10% and the atypical silent partner holds a 90%. The partnership agreement, the contracting parties agreed that in the event that one co-contractor of the atypical silent partnership, the other in an analogous application of the provisions of § 142 UGB is entitled to all assets of the co-entrepreneurship, comprising also the company of the business lady and the atypical silent to take over.
with the standing debate in the transfer agreement brings Daniel H ** their share of the joint venturers atypical silent partnership, including several in the special business property is situated, because of the balance transfer 31.12.2009 in kind in exchange for new shares from a ** on the P Real Estate Management GmbH decided to increase the share capital in the P ** Property Management GmbH one. In the Contribution Agreement is held to be dissolved under this transfer process agreed between the parties are atypical silent partnership and as the direct result obtained by the introduced and assigned co-entrepreneurs share civilly and economically represented assets of the individual enterprise Daniela Hotel passes I ** eU including all assets and liabilities, rights and obligations by way of singular succession to the P ** Property Management GmbH - H **.
Referring to my Posted 09/03/2010 I was now the design of this transfer agreement provided with the following request:
I am of the opinion that the resignation of the business lady following the transfer of their fellow entrepreneurs share the atypical silent partner and caused by the dissolution of the atypical silent partnership, the assets of partnership, while the passes to the atypical silent partner, but the analogy of § 142 UGB not extend to the universal succession. In the case of you reported an overall succession was said or agreed. I do not believe that I am in the company's registration book of the deletion of the individual enterprise in addition to the operating transfer to the atypical silent partner "P ** Property Management GmbH" and can still register the universal succession.
preliminary point is that I am in my post dated 9/3/2010 not address these issues, but had merely noted that the fact that with the introduction of an atypical silent partnership interest and a "permanent transfer of the atypical silent partnership" may be associated, will be in need of clarification.
The practical relevance of this question is evident:
The corresponding entries in the commercial register act, in principle, only declarative, but it would be highly unsatisfactory if, in view of the publicity effects of such records in legal relations, the impression of not actually present succession is taught. The Company Registry has therefore to ensure that material right entries are made in the Companies Register.
is responsible for advising and vertragsverfassenden professions it is crucial to make the civil contract is right, but must be assured that there will be a legally effective Transfer of assets to the acquiring party is.
more surprising, therefore, is the answer to that question is highly uncertain.
is undisputed that the dormant company may sell itself, no company, as they are not corporate winner is. Nor can the company still be no purely as an internal company reorganization to persons directly involved. Place in the present situation is also not in the literature relevierten problems that result from the fact that the business owners in the way of transfers of single or universal succession, his company. This transfer is as it were internally handled the atypical silent partnership and is therefore characterized by a corresponding agreement, so that questions "imposed contractor change" not at all (see Hochedlinger in Hochedlinger-Fuchs , silence society Rz 1 / 140).
is clear also that the dormant company is assets into himself, the silent partner is in the business of the business owner (with appropriate "atypical" Structuring the partnership agreement) are only involved contractually ( Hochedlinger op Rz 1 / 215; Krejci , Corporate Law I, 438f).
Here is an "enforcement event, the silent Society to discuss ". It is also the solution must be oriented towards.
Hämmerle / Wünsch emphasize that the resolution of a dormant company perform essentially according to different rules than the dissolution of partnerships. Because it is a pure internal company without a company, is the resolution of the silent partner but a complete termination of the cooperation established between the business owners on the one hand and the silent partner on the other hand, purely contractual legal relationships that eventually follow the discussion of proprietary claims (cf. Hochedlinger ibid, para 1 / 221 with the appropriate references).
sees this reach Rohrwig in the event of termination of an atypical silent partner, who is contractually in the assets of a corporation or partnership without a natural person as general partners involved, different (basic issues of capital maintenance, 404F, 419f).
The literature also discusses whether the shareholder is a silent takeover law analogous to § 142 UGB get in the event that the business owners, companies with a resolution of the silent partnership can not continue or will. This question will be answered in the affirmative, consequently, only be possible if we take the view that the mode of succession of universal succession could also be agreed by contract (while the hL pronounce). This approach was partly followed, in some situations even without an explicit agreement ( Hämmerle / Wünsch ). K. Schmidt however, the possibility of a contractually agreed succession advocates in universal succession and only holding an agreed transfer of business from business owners on the Pacific by way of singular succession possible ( Hochedlinger above, Rz 1 / 231 corresponding to the document places).
brings us to the topic:
In the specific case Part of the agreement that Daniela continue business as Lady H ** their individual businesses no longer, but transferred to the LLC (as a silent partner) wants. Following the first literary voices, such transfer within one (actually so agreed) universal succession would be possible and therefore in the company register the asset acquisition of the company David H ** pursuant to § 142 UGB to P ** Property Management GmbH write.
such registration would be contrary to the system. § 142 UGB is so ahead of the acquisition of the assets of a partnership, just as a consequence of the fact that due to resignation the penultimate shareholder only remains a shareholder. Against this background, it is inconceivable that the assets of an individual enterprise on the basis of § 142 UGB passes, because a "company assets" to be submitted. If you want to take the analog recourse to § 142 UGB available, this would likely lead logically to the registration of the transfer the assets of the atypical silent partnership. According to the legal nature of the silent partnership as internal company purely contractual and legal relationships in the context of any assets of the Company to satisfy such registration separates fact in my opinion, but by definition from, so I tend, in line with the views in the above-described request for the described constellation "only" singular succession must be regarded as permissible.
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