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When buying a company, you also have to think about how you are liable for the company’s liabilities. Therefore, we explain when and to what extent you are liable.

If the sole proprietor enters into a transaction on behalf of his company, the company has not become the business partner. Rather, the owner is personally entitled and obliged. The only difference is with commercial companies and legal entities. These are legally competent and can therefore carry rights and obligations.

However, commercial transactions assume that creditors of business liabilities can in principle assert them against the company as such. They do not care who the respective owner is. Due to this traffic view, there are the regulations in §§ 25, 27, 28 HGB. Thereafter, liabilities are transferred to the new company owner under the conditions there. The law makes a distinction between three cases: the change of owner by legal transaction (§ 25 HGB), the change of owner by succession (§ 27 HGB) and the entry into the business of a sole trader (§ 28 HGB).

According to § 25 (1) sentence 1 HGB, the acquirer of a commercial transaction is liable for the liabilities of the former owner if he continues the business under the previous company. This is a legal debt relief. The liability of the former owner therefore remains unaffected. However, this is liable according to § 26 HGB in principle only five years.

According to § 25 (1) sentence 1 HGB, the acquirer of a commercial transaction is liable for the liabilities of the former owner if he continues the business under the previous company. The standard thus concerns the question from whom the creditor of a claim against the commercial transaction can demand the performance in the case of a takeover by a third party.

The prerequisite for this is that a trading business is acquired among living people and continued under the previous company. In addition, the liability of the acquirer must not be excluded.

If the requirements of § 25 HGB do not exist, for example, because the operation is not continued, the appearance of continuation of an almost identical company can also justify liability under the general rules of appearance.

According to the wording of § 25 HGB, the acquired business must be a commercial business. The standard cannot be applied to a non-commercial enterprise because no liability exclusion according to § 25 paragraph 2 HGB can be entered in the commercial register. Otherwise, the non-commercial entrepreneur would be more liable than the commercial entrepreneur.

Acquisition among living persons occurs when the legal entity changes. The mere renaming of a company does not lead to the application of § 25 (1) HGB. In the case of such a company change, the liability for old debts exists anyway, because the legal entity does not change.

However, any purely actual acquisition is sufficient for acquisition. Therefore, no acquisition in rem and no effective contract under obligations is necessary. It is therefore sufficient if there is a temporary acquisition, such as rent or usufruct. The reason for this is that the liability is decisively based on the continuation of the company.

When acquiring commercial business in insolvency proceedings, however, the liability provision of § 25 (1) HGB does not intervene. Then the insolvency creditors should satisfy themselves only from the consideration provided by the acquirer, but not by recourse to the other assets of the acquirer.

The commercial business is continued if at least the essential core of the company is taken over. As a result, the facts appearing externally for right-hand traffic must constitute a continuation of the undertaking in its essential existence. Therefore, liability also applies if only individual assets or fields of activity are excluded from the takeover as long as only the essential core is taken over. In individual cases, therefore, it must be carefully examined which part constitutes the essential core.

In addition, the trading business must be continued under the previous company. However, a literal and literal correspondence between old and new companies is not necessary. The only decisive factor is whether business transactions still identify the new company with the old one. It is therefore sufficient that the core of the company and the formative additives are adopted.

When assessing whether the formative addition has been adopted, there are certain guidelines. A family name regularly belongs to the company core or is at least a defining addition. If a sole trader carries his first name as part of the company in addition to his family name, both components are equally defining. If, in the course of a transfer, the delivery is retained, but the first name is exchanged, there is usually such a serious change that the business transactions must proceed from a completely different company carrier. However, the change in the legal form addition, for example from “e.K.” (registered merchant) to “GmbH” does not constitute a serious change in the company. Legal traffic sees the companies as identical, even if the legal entity has changed.

In addition, only the actual company continuation is decisive. Therefore, it is irrelevant whether another company has been registered in the commercial register or whether the continuation is entitled in the internal relationship with the seller, i.e. he has approved in particular according to § 22 HGB.

Purchasers and sellers may exclude liability by agreement. However, this agreement only takes effect vis-à-vis third parties if it has been entered in the commercial register and made public or has been communicated to the third party by the acquirer or seller. However, this would have to be done immediately after the transfer, since the transfer of liabilities and claims takes place under law at the time of the transfer. However, the entry of the disclaimer of liability is only permitted if liability under § 25 (1) HGB is seriously considered.

A subsequent exclusion of liability is not possible, unless it takes place immediately after the takeover of business. The new business owner can also not solve himself by a challenge of the takeover contract in the internal relationship. § 25 HGB links the liability solely to the actual takeover and continuation of the business including the company. This is a purely real act and therefore cannot be contested. The challenge is only eligible for legal declarations of intent and declarations similar to legal declarations.

The new holder is not only liable. Rather, according to § 25 (1) sentence 2 HGB, the claims established in the company vis-à-vis the debtors are deemed to have been transferred to the acquirer. The standard therefore concerns the question to whom the debtor must pay in the event of a takeover of the commercial transaction by a third party.

For this purpose, a trading business among living people must be acquired again and continued under the previous company. However, the consent of the previous owner to the continuation of the company by the acquirer (§ 22 HGB) must also be present. In contrast to § 25 (1) sentence 1 HGB, the continuation must therefore also be permitted in the internal relationship of the acquisition to the seller.

The claim does not pass under general rules if the transfer of the claim is excluded by agreement between the vendor and the debtor or made conditional on his consent. The seller and the debtor would therefore have to have agreed on an assignment ban. In principle, such assignment prohibitions according to § 399 Variant 2 BGB are possible. However, an assignment can be effective despite the agreement of the prohibition of assignment pursuant to § 354a (1) HGB. Thereafter, a monetary claim whose assignment has been excluded by agreement with the debtor may nevertheless be effectively assigned if the transaction giving rise to the claim is a commercial transaction for both parties. Therefore, assignment prohibitions are insignificant if the underlying transaction for both is a commercial transaction (§ 343 HGB), i.e. both are merchants and the presumption of § 344 (1) HGB was not refuted.

In addition, the transition covers only those claims that can be transferred without any special form and are transferable at all. The assignment requirements must be fulfilled, since the fiction of the assignment according to § 25 (1) sentence 2 HGB cannot go further than an actual assignment. In addition, no deviating agreement may have been concluded between the seller and the acquirer of the commercial transaction, which is entered in the commercial register or communicated to the third party by the seller or acquirer (§ 25 paragraph 2 HGB).

If the conditions for the transfer of entitlement are met, the original farmer may no longer claim the entitlement.