1. The legal situation
1.1. Legal starting point
According to § 8 (1) of the PartGG, “for liabilities of the partnership the creditors are jointly and severally liable in addition to the assets of the partnership.” As a result, this means that each partner can be personally recoursed for all liabilities of the company. A limitation to this very broad liability rule states § 8 paragraph 2 PartGG for professional errors as follows:
‘If only individual partners were involved in the processing of a contract, only they shall be liable for professional errors in addition to the partnership in accordance with paragraph 1’; except for processing contributions of minor importance.
The central examination point of the exception is therefore whether the respective partner, who bears the burden of presentation and proof with regard to the limitation of liability of § 8 paragraph 2 of the PartGG, "was involved in the processing of the order".
1.2. Legal assessment
In the legal literature, “concern” is understood as any act of cooperation in the broadest sense. This is an actual criterion, so that the designation of a processor or individual processor on behalf of the liability of the other partners not named on behalf does not have a restrictive liability effect according to § 8 PartGG. [1] According to the Supreme Court jurisprudence of the Federal Court of Justice from 2009[2], a referral within the meaning of § 8 paragraph 2 of the PartGG exists if the partner carries out the task.
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.