What are the liability risks for the liquidator?

The liquidation of a GmbH, like its establishment, follows fixed rules. On the liability risks of the liquidator of a GmbH

The liquidation of a GmbH, like its establishment, follows fixed rules. For example, the GmbH has to use the addition “i.L.” (in liquidation) in addition to its name in business transactions, comply with Section 71 (5) GmbHG and the so-called blocking year, Section 73 (1) GmbHG. Only after this blocking year has expired, the remaining assets of the company may be distributed to the shareholders.

In the liquidation phase, the so-called liquidator has a role comparable to that of the managing director. This virtually takes on the position of managing director. If the appointment as liquidator is neither made by an independent shareholder resolution nor by a corresponding regulation in the statutes of the GmbH, the law provides that the managing director of the GmbH takes over this position as soon as the GmbH enters the liquidation phase, Section 66 Par. 1 GmbHG. In this context, the managing director is therefore also referred to as a “born liquidator”.
The task of the liquidator is to end the company's current business, to meet the company's obligations, to collect claims, and to convert the company's assets into money, Section 70 GmbHG. If new legal transactions are entered into, these must be in the service of processing.

The liquidator is obliged to the company to ensure proper liquidation. The responsibility for culpable behavior, that is, the violation of the due diligence of a prudent businessman, can establish the obligation to pay damages.

The office of liquidator is therefore in practice associated with personal liability risks, as a current decision of the Federal Court of Justice (judgment of 13.03.2018 - II ZR 158/16) shows.

Claims for damages

One of the possible bases for claims for damages against the liquidator is section 73 (3) GmbHG. This sees a personal liability of the liquidator, among other things. then if he already distributes assets to the shareholders within the so-called blocking year, although known claims against the company have not yet been serviced.

In this case, Section 73 (3) GmbHG provides that the liquidator is obliged to pay compensation to the company. So far, however, the question has been controversial as to whether a bypassed creditor can also assert a claim for compensation for his damage directly against the liquidator - in the corresponding application of Section 73 (3) GmbHG. According to the proponents of a direct claim by the obligee, this is supported by the fact that without such a direct claim the obligee would first have to fight for a title against the company in the event of a non-dutiful distribution of the company's assets. Only then could he use this title to seize the company's claim against the liquidator in accordance with Section 73 (3) GmbHG. This complicated and lengthy procedure cannot be expected of the creditor.

The decision of the BGH

The BGH has now clarified this question. The BGH denies a direct claim by the obligee in the corresponding application of Section 73 (3) GmbHG with the argument that Section 73 (3) GmbHG should only indirectly protect the creditors of the GmbH, but primarily serve to protect the company. However, the BGH opens up the possibility for transferred creditors to apply the provisions of stock corporation law in Section 268 (2) in conjunction with To proceed directly against the liquidator in accordance with Section 93 (5) AktG. This is at least possible if the GmbH has already been deleted from the commercial register and only one creditor is present. In contrast to Section 73 (3) GmbHG, Section 286 (2) in conjunction with 93 para. 5 AktG also exclusively for the protection of creditors.

As a further justification, the BGH stated that the application of the stock corporation law avoids unnecessary detour via the company and thus simplifies the satisfaction of creditors.

The direct claim also avoids the risk that the satisfaction of the creditors could be thwarted if the damage is asserted through the company.

In addition, the situation at the AG is comparable to that at the GmbH. The direct claim of the obligee according to § 286 para. 2 in conjunction with Section 93 (5) AktG presupposes that the creditor can no longer expect any satisfaction from the AG. This situation usually occurs when company assets have already been distributed in violation of creditor protection regulations and the remaining assets of the AG are no longer sufficient to satisfy them or the liquidation has already ended. This is exactly the purpose of the regulations on the liquidation of a GmbH. They should also ensure that the creditors of the GmbH to be liquidated are satisfied. A factual reason that prohibits a transfer of this level of protection from stock corporation law to the law of a GmbH is not apparent.

Practical note

The decision of the BGH results in an increased liability risk in practice, since the creditors no longer have to take the time-consuming and costly route through the company, but can instead make direct claims against the liquidator.

In addition to the risk of direct use according to Section 286 (2) in conjunction with According to Section 93 (5) AktG, there are regularly additional risks for the liquidator that must be taken into account when exercising the office - comparable to those when exercising the office of managing director.