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7 September 2022 | How to bring the share capital in the right way when founding a GmbH (this contribution)

When founding a GmbH, you must bring in a share capital of 25,000 euros. This can be done by means of cash deposits or deposits in kind. There are also certain liability risks. We explain how you bring the share capital into the GmbH.

1st establishment of a GmbH

When establishing a GmbH, it is above all important to contribute the share capital to the GmbH. The social contract can already set a course for this. The self-created social contract offers real added value if it takes future developments and problems into account.

2 Paying in debt-free manner

SEGMENT010 2.1. This is why share capital is necessary

The proper raising of the share capital of EUR 25,000 is an essential prerequisite for the foundation of the GmbH. In the view of the legislature, it is only if the assets available to the creditors alone are fully and correctly raised that the liability of the shareholders behind the limited company can be justified. Therefore, the GmbH Managing Director is also obliged to provide an insurance regarding the obligation to make the necessary payments or services. The wrong insurance is also punishable according to § 82 GmbHG.

2.2 Non-exempted share capital

There are therefore some cases in which the share capital is not rendered debt-free. Then there is no performance effect and the obligation to make the deposit remains. One of these cases is where the company provides security to a third party in order to grant a loan to the shareholder or an affiliated company for the purpose of granting the contribution.

The contribution also does not discharge debt if the shareholder pays in the share capital and subsequently receives a loan from the GmbH. This case is now also regulated in § 19 paragraph 5 GmbHG. Accordingly, such an agreement can still lead to the discharge of debt if certain conditions are met. Therefore, the loan granted to the shareholder must be cancellable at any time, so that the service to the shareholder is covered by a full repayment claim that is due at any time or due by termination without notice. Constitutively necessary for the liberating effect is also the disclosure of the agreement to the commercial register. However, the incorrect registration does not affect the civil validity of the loan agreement. Therefore, it can only result in criminal sanctions according to § 82 GmbHG for the managing director.

3. Share capital by contribution in kind

3.1. Requirements for contribution in kind as share capital

The share capital can also be provided by the contribution of a thing. Then, according to § 5 paragraph 4 GmbHG, the object submitted must be named as concretely as possible in the articles of association. In addition, a written substantiation report must be prepared. It shall specify the contribution in kind and the circumstances of the contribution.

However, in-kind inserts can also be combined with cash inserts, which is then called mixed insert. This is to be distinguished from the mixed deposit. A mixed contribution in kind exists if the subject-matter of the contribution in kind is higher in value than the nominal amount owed and the company is obliged in the contribution in kind agreement to compensate the difference by payment to the shareholder or the shareholder pays a share premium to be placed in the capital reserve (§ 272 paragraph 2 no. 1 HGB).

3.2. Concealed contribution in kind

These strict requirements are often ignored for contributions in kind as share capital. In order to counteract attempts at circumvention, the Federal Court of Justice (BGH) has developed the principles of concealed contribution in kind. Such a hidden contribution in kind is referred to when the strict rules of the contribution in kind are undermined by a separation into cash with a subsequent purchase in kind, a loan repayment or something comparable. Therefore, there is a concealed contribution in kind if the creation or capital increase is formally carried out as a cash formation or a cash capital increase, but is carried out economically like a creation in kind or a capital increase in kind. It does not matter whether the respective payment entitlements are offset or whether the purchase price and the cash deposit are paid. For example, in cases of incorporation, tangible objects of fixed or working capital, such as a car or office equipment, are often acquired from the assets of a shareholder and the money paid on his cash contribution is repaid to him as compensation.

The legal consequences of a concealed contribution in kind are regulated in § 19 paragraph 4 GmbHG. If the registry judge recognises a concealed contribution in kind, he rejects the application. If the GmbH is entered in the commercial register nevertheless, the concealed contribution in kind pursuant to § 19 paragraph 4 GmbHG, insofar as it holds value, leads to the partial payment of the cash contribution debt. Then, in the event of a full impairment, the shareholder’s cash contribution obligation expires, but not retroactively by performance, but by crediting ex nunc. Otherwise, the shareholder must pay any difference in value to the contribution obligation in cash.

In addition to the differential liability of the depositor and the criminal liability of the managing director, claims for damages against the management (§ 43 GmbHG) and the co-partners (§ 9a GmbHG) continue to be considered. Despite the credit solution, founders are therefore strongly advised against concealing the foundation of the material. If individual assets or a sole proprietorship are to be brought into the company on the occasion of the establishment, the founders are advised to use a so-called Sachagio. In another article, we explained how exactly this design works.

Conclusion on share capital and its contribution