If a partnership partner has acted against the will of another, this has no meaning in external relations with the third party. Rather, the partnership is effectively obliged. The other shareholder is even liable for the liabilities incurred against his will in accordance with § 128 sentence 2 HGB. But then the question arises as to how shareholder liability is structured in the internal relationship. We clarify whether the partner concluding the contract is obliged to pay damages to the other partner.

The shareholder of a partnership can represent them in accordance with § 126 (1) HGB in an external relationship – i.e. in relation to third parties. Any restrictions contained in the articles of association or agreed verbally between the shareholders in accordance with § 126 (2) HGB are irrelevant. They therefore do not preclude the effective conclusion of a contract. This applies even if they are registered in the commercial register.

But what applies if other co-partners do not agree with the conclusion of the contract? May the shareholder nevertheless “everything” or is he at least limited in his internal relationship with the other shareholders? That is a question that we are now clearing up.

The co-shareholder against whose will was acted could demand damages from the acting shareholder.

2.1.1. Contract and breach of contractual obligation

For the time being, the general contractual liability for damages under § 280 paragraph 1 BGB could be considered as a basis for claims in the case of shareholder liability in the internal relationship. This applies whenever obligations arising from a contract have not been sufficiently fulfilled. The contract in this sense is the social contract. However, it is questionable whether the acting partner has also violated a duty under this social contract. In principle, a shareholder is authorised to manage according to § 114 (1) HGB.

Only for such transactions that go beyond the normal operation of a commercial trade, a resolution of all shareholders according to § 116 (1), (2) HGB is necessary. Such transactions are usually those that normally occur in a commercial trade. On the other hand, transactions are exceptional in nature, content, purpose, scope or risk when considering the particular circumstances of the particular company. In addition, the management authority may also be limited by the social contract.

If the transaction is of such an exceptional nature, there would still have to be a breach of duty in relation to the social contract. Sometimes one might think that the shareholder who exceeds his management authority acts just outside the company contract, so that there is no breach of duty with regard to the company contract.

However, this view would logically have the effect that any breach of duty is to be regarded as outside the contract and therefore there is no longer any contractual claim for damages. However, this is illogical. The more the contractual competences have been exceeded, the more the contractual partner must be protected by contract. Therefore, even if the management authority is exceeded, there is a breach of duty in relation to the articles of association. Such an exceedance can of course also occur if restrictions in the social contract itself or oral agreements between the partners have not been complied with.

Nevertheless, the shareholder would also have to represent such a breach of duty. In principle, the shareholder has to represent intent and negligence according to § 276 BGB. However, the liability privilege of § 708 BGB could apply in conjunction with § 277 BGB. Accordingly, the shareholder of a GbR in internal relations with the other shareholders must only be responsible for the care he takes in his own affairs. This limitation of liability is based on the close, trusting cooperation of the shareholders, which should not be destroyed by claims for damages.

However, it is controversial whether this limitation of liability also applies if a shareholder exceeds his management authority. On the other hand, it could be argued that a partner acting in this way leaves company law by carrying out an act outside of company. In addition, it could be assumed that it is one of the tasks of the shareholder to examine whether the transaction is covered by its powers. If the breach is reproachable to him, he may also be liable in this regard. The limitation of liability of § 277 BGB therefore does not apply to shareholder liability in the internal relationship with the other shareholders.

If a shareholder does not act at all and therefore does not fulfil his obligations laid down in the articles of association, the other shareholders could be liable for damages instead of performance for non-performance. The corresponding claim basis would be §§ 280 paragraph 1, paragraph 3 in conjunction with § 281 paragraph 1 sentence 1 BGB.

The damages instead of the service, however, according to § 281 paragraph 4 BGB has the consequence that the right to the service is excluded. Consequently, a right of the other shareholders to fulfil their obligations vis-à-vis the non-performing shareholder would also be excluded in the future. In fact, this dissolves society, since a shareholder is released from his duties. The dissolution of a company is, however, specially regulated in company law. In addition, it is not clear to the creditors whether a corresponding claim for damages exists and is actually justified. Therefore, the company cannot dissolve solely as a result of a claim for damages. For this reason, corresponding claims for damages instead of performance are excluded.

Therefore, the other shareholders can only assert a normal claim for damages in addition to the performance according to § 280 paragraph 2, 286 BGB. This only requires that the shareholder is in default. Therefore, there must have been a due and enforceable claim to fulfil the shareholder obligations. In addition, a reminder is basically necessary. However, this can be dispensable in accordance with § 286 paragraph 2 BGB. In particular, if a day is intended for the provision of the service or the shareholder refuses to provide his obligation to provide the service definitively and determinedly.

However, the other shareholders must also be able to assert the claim for damages against the shareholder who infringes his duty. It would be conceivable that they sue the claims on behalf of the company if the shareholder does not voluntarily provide.

Claims of the company against its partners from the social relationship are called social claims. These must be asserted by the representative shareholder.

Now it could be that the shareholder who has breached the obligations is also the sole shareholder entitled to represent under the company agreement. But he will probably not sue any claims against himself. But even in such cases, the claims must be able to be asserted in some way. This is possible by way of shareholder action. According to the shareholder action, each shareholder is entitled, during his membership of the company, in the interest of the company to bring an action in his own name solely on the performance in the company assets because of a social entitlement.

The shareholders are contractually liable for each other in accordance with § 280 BGB. Only compensation for damages instead of performance within the meaning of § 280 paragraph 2 BGB is not considered. In particular, in the event of non-performance, the shareholder can only claim delay damages according to § 286 BGB. Such claims may be brought by way of action.