An association is a permanent association of natural or legal persons that has joined together for a common purpose. The association can be entered in the register of associations. Certain legal consequences are attached to this, since the registered association becomes legally qualified as a legal person as a result of the registration. How these look and what advantages can arise from this clarifies this article. Furthermore, certain prerequisites are necessary for the establishment and registration of an association, which are also presented.

A registered association (e.V.) is a permanent association of several natural and/or legal persons, which has joined together in order to achieve a common purpose to form a member organization. The purpose of the association can be chosen arbitrarily (Art 9 I GG). The registered association is entered in the register of associations (§ 55 BGB) and becomes a legal person. Thus, the registered association is legally competent and can thus be the holder of rights and obligations.

The decision-making of the entire organization is carried out in accordance with § 32 BGB by the General Assembly as a decision-making body. Externally, i.e. vis-à-vis third parties, the association is represented by the board of directors as an acting body in accordance with § 26 BGB. The registered association exists independently of the change of members.

There are so-called ideal clubs. These are clubs within the meaning of § 21 BGB. In contrast to economic clubs within the meaning of § 22 BGB, they are not aimed at an economic business operation.

More people want to start an association. This first requires that a founding contract and a statute agree. In addition, a board must also be appointed.

The founder contract is the agreement of the founders on their association for the pursuit of a specific purpose and on the statutes made for it. The prevailing view assumes that the founder’s contract is initially a contract. With the emergence of the association, however, this should represent the corporate constitution of the association. The concrete consequence of this assumption is that various obligations regulations do not apply or are modified. Thus, for example, a challenge to the founding contract on the part of a founder should not dissolve the founding contract ex tunc (retroactively), but should only have the effect of a declaration of withdrawal on the part of the contesting founder, if the required minimum number of members is reached without him.

The statutes are comparable to a partnership agreement. In order for the association to be entered in the register of associations, the statutes must have the following minimum content: it must contain the purpose of the association, the name and the seat of the association. Furthermore, it must follow from the statutes that the association should be registered (§ 57 I BGB). In addition, it is necessary for the registration of the association according to § 58 BGB in conjunction with § 60 BGB that the statutes make provisions about the entry and exit of members, amount obligations, the formation of the board and the general meeting. However, it should be mentioned that the amount of the membership fee does not have to be specified specifically so that later changes are easier to make. Phrases such as “the General Assembly decides on the amount of contribution” are sufficient.

The law does not prescribe a special form for the statutes. Only when registering the association must the statutes be presented in a copy (§ 59 II BGB), as this allows the electronic transmission of the documents to be entered in the association register. The Statutes shall continue to be signed by at least seven members. In addition, the date of establishment must be indicated (§ 59 III BGB). The purpose of the association can be defined as desired (Art. 9 I GG) but must be sufficiently determined.

The board of directors represents the association in court and out of court as a legal representative. The power of representation is in principle unlimited, but can be limited according to § 26 I 3 BGB by statutes. It should be noted that the restriction pursuant to §§ 68, 70 BGB only affects a third party if it is known to the latter or has been entered in the register of associations. Restrictions may consist, for example, in prohibiting certain transactions or in justifying consent requirements.

Nevertheless, the passive representation, which is regulated in § 26 II 2 BGB, cannot be limited by statutes. As a result, declarations of intent that should apply to the association can be made to the individual board member.

The Executive Board registers the association by means of certified declaration (§ 77 BGB) for registration in the association register. This requires an effective founder contract, a statute and a board of directors. If the statutes are erroneous or incomplete, the association is nevertheless created as a legally competent association. Deletion is only possible ex nunc with effect for the future according to § 395 FamFG.

During the period between the agreement of the statutes and the subsequent registration there is a pre-union. For this, the corresponding principles apply in principle, as in the Vor-GmbH. The pre-union is already granted legal capacity. Liabilities of the sub-association are those of the association from the time of entry into the register of associations, since both clubs are identical. Until registration, the persons who act for the pre-association are personally liable. Their liability shall cease upon registration. Unlike Vor-GmbH, however, the Vorverein has no differential liability of the founders. This difference is based on the fact that the law of association does not regulate the raising of capital or the raising of capital. capital conservation.

It is important to mention that a registered association is not automatically a non-profit association. The charitable nature is checked and certified separately by the tax office.

The association has now been entered in the association register. This leads in particular to changes in liability issues.

As a result of the registration, the association is liable as a legal entity for legal obligations if these have been effectively established by its representatives. Furthermore, the association is liable for damages caused by the association bodies to third parties in the performance of their tasks (§ 31 BGB). In particular, liability for practitioners, for example any employees within the meaning of § 831 BGB, is also considered.

The internal ratio must be distinguished from the external ratio just described. In the internal relationship, the board is liable to the association. He is, justified by his organizational law appointment, obligated to the association to act properly. Accordingly, a liability of the Executive Board towards the association in the event of culpable violation of this duty pursuant to § 280 I BGB comes into consideration. Only voluntary board members and those whose remuneration does not exceed 720 euros the limitation of liability of § 31a I BGB, so that then only a deliberate or grossly negligent breach of duty justifies the liability.

However, the Board of Management is regularly discharged at the General Assembly. In concrete terms, this means that the management of the Board of Management is expressly approved by the members at the general meeting as proper. This leads to the fact that in particular claims for damages by the association vis-à-vis the board of directors with regard to management measures, which had to be at least known to the general meeting, are excluded.

Actually, the board is the acting body of the association. However, it is inefficient if the claims against the board can only be enforced by the board. For this reason, in the case of a multi-member executive board, the remaining executive board can enforce these claims. In the case of a single-member board, on the other hand, the general meeting of members can make a resolution on the prosecution of claims and appoint a special representative to enforce the claim.

The members of the registered association are in principle not liable for the liabilities of the association. The latter is liable, as represented as a legal person itself. Therefore, the private assets of the members are not affected in principle.

When you are about to start an association, you ask yourself in particular whether you should register the association. The essential difference to an unregistered association is that only the registered association is legally competent as a legal person.

The unregistered association, on the other hand, is not a legal entity. Nevertheless, it is nevertheless an association if a corporate organization exists on the basis of a statute. According to § 54 S. 1 BGB, the provisions on civil law companies, i.e. §§ 705 ff. BGB, apply to the non-registered association accordingly.

The members are jointly entitled to the assets of the association. This is shown by the fact that the individual cannot dispose of individual objects or rights of this property alone, but rather it is in the hands of the participants. Therefore, the club is to be assessed as an overall hand. A liability of the association is therefore possible.

Nevertheless, in addition to the association according to § 54 S. 2 BGB, the person who acted for the association is liable. Anyone who acts as a representative, regardless of whether he or she actually has representative power, is regarded as an actor. This means that the person with his private assets is liable for a legal transaction that he has made on behalf of the association to a third party. This regulation serves to protect the creditor, since the association does not have a legally stipulated share capital or share capital. Thus, a liability of the member comes into consideration differently for the registered assets with the private assets.

The relevant characteristics of the registered association were identified. Finally, its advantages and disadvantages are worked out.

First of all, one advantage is that the members and the Executive Board are not liable for liabilities. Further advantages are listed below.