You and your business partner both agree that the GmbH from which you purchased shares is liquid. In retrospect, however, it may turn out that the balance sheets have errors. Then the question arises for you whether you can get back your paid purchase price for the shares in an insolvent GmbH. This would be possible, for example, if the warranty right or the disruption of the business basis according to § 313 BGB are applicable. All this will be clarified below. However, this does not address secondary legal – damages legal – claims.

The disturbance of the business basis has its origin in the old Roman law and was based there on the principle of clausula rebus sic stantibus (in German: determination of the same circumstances). Today it is regulated in § 313 BGB and justifies a contract adjustment claim.

Prerequisite for the contract adjustment according to § 313 BGB is that essential ideas of the parties have become the basis of the contract at the time of conclusion of the contract. These foundations must be common to both parties and have proven to be false. In addition, the parties, on the basis of the correct foundations, would not have to have concluded or with a different content and the adherence to the original conditions would not have to be expected.

The warranty right serves to secure the equivalence interest in the context of a contract, for example, the purchase. The interest of equivalence means the relationship between performance and consideration. If a service does not correspond to the agreed consideration, there is, for example, the possibility of improvement, reduction or withdrawal.

It may happen that shares in a company have been purchased in which the financial statements show significantly too high turnover due to massive delineation errors. On the basis of the correct company figures, a clear underbalance would have resulted, which would have justified an insolvency law over-indebtedness within the meaning of § 19 InsO leading to the insolvency maturity of the GmbH. The purchase price would then have been set at zero at most. However, the delineation errors may now have mistakenly misunderstood buyers and sellers. Then, of course, the question arises whether you as a buyer can claim back the paid purchase price for the shares in an insolvent GmbH. The contract adjustment due to disruption of the business basis according to § 313 BGB or any warranty rights is then considered as a basis for claim.

With the reduction of the purchase price, the warranty right provides a basis for the request for a reduction of the purchase price. Pursuant to § 453 paragraph 1 BGB, the warranty right under purchase law applies to the purchase of shares. It must therefore be clarified whether this matured also for the shares in an insolvent GmbH. It is already questionable whether the purchase of GmbH shares is to be assessed as a purchase of rights or property. The reference of § 453 paragraph 1 BGB to the right to purchase refers not only to the purchase of rights but also to the purchase of goods.

Nevertheless, the BGH argues that the subject-matter of the contract through the separation of shareholder and company alone constitutes the share of the company. This must then also form the starting point for determining the applicable warranty right.

The buyer does not acquire a direct right in the assets held by the shares, but can only exercise influence within the scope of the powers granted to him as a shareholder. Liability for defects of the company itself should only be considered if the entire company is sold. In this case, the entire company assets are actually bought. From an economic point of view, it is therefore a property purchase. Otherwise, there is a pure right purchase. It should not matter whether the acquisition now amounts to 100% in the future. This is based on the fact that only the object of purchase and not any accompanying circumstances are relevant.

As a rule, therefore, there will be a right purchase. The provisions on the purchase of objects apply according to § 454 paragraph 1 Alternative 1 BGB but corresponding to the purchase of rights. But it is questionable how this reference is to be understood.

On the one hand, it is represented, the material defect liability refers to defects of individual objects, rights and other objects of the company assets. Corresponding defects can therefore be regarded as a defect of the share itself triggering the warranty rights.

However, this argument overlooks the fact that the object of purchase is not a thing but a right with the above argument. By virtue of law, the seller of a right only guarantees the existence of the right, but not the collectability of the claim. Therefore, it does not refer to the quality of the object to which the right refers. A corresponding credit liability can only arise if it has been stipulated contractually. Accordingly, a material deficiency of an undertaking cannot at the same time justify a material deficiency of the shares in the company. Therefore, the warranty right for shares in an insolvent GmbH is excluded.

Legal consequence of the disruption of the business basis is primarily the claim to an adjustment of the contract to the actual circumstances in accordance with the interests. This is done according to the criterion of reasonableness for the parties and with the greatest possible consideration of the will of the contract. Therefore, the intervention in the contractual regime must be minimised.

In the present case, the reduction of the liability for the shares in an insolvent GmbH could constitute the adjustment to the contract. Then, of course, the question arises as to whether the purchase contract is not cancelled with full repayment. This must be contradicted, because the Treaty is merely intended to be adapted and therefore, moreover, to be retained. Consequently, the sales contract remains the legal basis for the transfer of the right to the shares.

The applicability of the disruption of the business basis could therefore only be excluded if the maturity of insolvency justifies a defect in the GmbH shares. If one argues that the maturity of insolvency jeopardises the holding of shares in an insolvent GmbH, this overlooks the fact that voting rights and profit claims exist exactly as before the occurrence of over-indebtedness. Therefore, the legal status owed is transferred without defect. The seller is also not liable for the creditworthiness of the sold right, as proven above. Therefore, it is irrelevant that the actual expectation of profit can be eliminated and the economic value of the shares can be reduced. Therefore, due to the lack of shares in an insolvent GmbH, the disruption of the business basis is applied.

We clarify tax advantages of the GmbH compared to the sole proprietorship and the GmbH & Co Kg, for example, in dividends and real estate.

Although the disruption of the business basis is applicable, shares in an insolvent GmbH must also meet the requirements of the disruption of the business basis. It is therefore necessary for a risk to materialise that does not fall within the risk area of one of the parties. For this purpose, the contractual agreements must be analysed in detail. Often there are embodiments that shift the insolvency risk to the buyer. For example, it may be provided that the buyer can assess the value of the undertaking and its economic strength and must carry out necessary measures without the involvement of the seller. Then the buyer alone bears the risk of insolvency. In this case, the disruption of the business basis for shares in an insolvent GmbH would therefore not be applicable.

This case shows that it is difficult to recover the purchase price for shares in an insolvent GmbH. Secondary legal, i.e. claims under damages law, have been ignored in our consideration. But these at least demand fault, which is then a question of individual cases. They should therefore have their solvency checked by specialist staff.