A GmbH is created according to § 11 I GmbHG only with its registration in the commercial register. The foundation of the GmbH is usually done in sections. Nevertheless, the founders of the GmbH would like to be preparatory even before the registration. For example, rental contracts or employment contracts should be concluded. This is possible because there is a pre-founder company in the period between the decision of the shareholders to found a GmbH and the formal conclusion of the company contract. In the following period until the registration there is a Vor-GmbH. Within these stages, companies have different legal forms.

You want to found a GmbH. This requires, among other things, the social contract, which must be notarized and the entry in the commercial register. Meeting these requirements can take a lot of time. However, there is often the need to act legally beforehand so that the GmbH can act directly after its creation. Consequently, even before the actual GmbH was created, there are stadiums in which the company can operate. A distinction is made between the pre-founding company and Vor-GmbH.

2nd pre-foundation company

The pre-founding company exists in the period between the decision of the shareholders to found a GmbH and the notarization of the company contract. This is not identical to the Vor-GmbH or the actual GmbH. Rather, the pre-founding company is a preparatory merger of the founders for the purpose of founding a GmbH. Therefore, not the GmbH law but that of partnerships applies. The pre-founding company has the legal form of an OHG or GbR. Consequently, § 109 ff. HGB or §§ 705 ff. BGB apply. Therefore, the shareholders are personally liable for the debts of the pre-foundation company. Consequently, even if acting on behalf of the actual GmbH, the pre-company is obliged.

The preliminary contract for the establishment of the pre-founding company is usually concluded implicitly by the preparatory acts for the establishment of a GmbH. However, the essential components of the GmbH social contract are not regularly regulated there. In addition, a contract for the essential components of the GmbH already requires the notarization according to § 2 GmbHG, otherwise the warning function of this standard will not be sufficiently satisfied. Under these arguments, the preliminary contract does not regularly give rise to any entitlement to conclude the GmbH-Gesellschaftsvertrag.

If the social contract is notarized, then the purpose of the pre-founding company is also achieved. It therefore ends (§ 726 BGB). Due to the lack of identity of the pre-founding company with the GmbH or Vor-GmbH, liabilities and rights of the pre-founding company are not automatically transferred to (Vor) GmbH. This requires a legal order. However, this transition can only take place with the consent of the creditor (§§ 414, 415 BGB).

During the period between the establishment of the GmbH, by notarized social contract and its creation as a result of registration, a Vor GmbH exists. The purpose of Vor-GmbH is to be seen in the establishment of the registration of the GmbH. Within the framework of Vor-GmbH, therefore, all actions aimed at promoting the creation of the GmbH and managing and maintaining the assets already contributed are possible. Furthermore, however, the purpose can also be extended as desired. For example, it can be agreed that the company should already take action before registration or that an existing company to be incorporated into the GmbH should be continued.

3.1. Legal form of Vor-GmbH

Vor-GmbH is a corporately organized association of its own kind, which is designed for the creation of a legal entity (the GmbH) and acts in a closed manner to the outside world. For this reason, Vor-GmbH may be the holder of rights and obligations. It is therefore legally competent. Therefore, the legal provisions applicable to Vor-GmbH are the Gesellschaftsvertrag and the GmbH Norms, which do not require the registration of the GmbH. Vor-GmbH is land register, commercial register and insolvency-capable. She may also be a personally liable partner of a limited partnership. Vor-GmbH is thus, like the GmbH, legally competent and therefore becomes a GmbH upon registration. Therefore, Vor-GmbH and the GmbH are identical. Consequently, no separate transfer of rights and liabilities is necessary.

3.2. Representation of Vor-GmbH

Vor-GmbH is represented externally by the Managing Director. The executive director’s power of representation is limited to those transactions which are necessary for registration. By, for example, an amendment of the social contract or a unanimous decision, the power of representation can also be extended. However, the extension only concerns the Vor GmbH. Therefore, it does not need form either.

Since Vor-GmbH has legal capacity, it is in principle also liable for its liabilities. Nevertheless, the raising of share capital at this stage is not yet sufficiently guaranteed. There is therefore a need to protect creditors. Therefore, the shareholders of Vor-GmbH and in particular the managing director can be personally liable.

4.1 Liability

Actors may be liable in accordance with § 11 II GmbHG. For this, you must have become a manager yourself. In the case of internal processes, this liability does not apply. Rather, the actor must act legally externally. Due to the identity of the GmbH to Vor-GmbH, acting liability also comes into consideration if acting on behalf of the future GmbH. This liability can only be excluded if the legal transaction is concluded under the suspensive condition of the creation of the GmbH. According to § 158 BGB, a suspensive condition means that the effects of the transaction should not occur until the condition has been met. Liability can also be excluded by agreeing that the GmbH must first approve the legal transaction. The reason for this liability is that the capital base is not yet controlled, published and secured to the same extent as with a registered GmbH. Consequently, this liability ceases upon registration of the GmbH.

In addition to acting liability, there is the liability of the founding shareholders. This is based on the fact that the intended share capital of the GmbH must be available at the time of registration and should not be consumed by liabilities of Vor-GmbH.

As of the registration of the company, the creditors can only access the company assets according to § 13 II GmbHG. The losses incurred until registration must therefore be compensated. The shareholders are therefore obliged to compensate the GmbH for the difference between the share capital and the value of the company assets at the time of registration. This obligation applies only if the shareholder has agreed to the early commencement of business, but regardless of whether the parents have fully complied with their commitment. In addition, the liability only applies in the internal relationship with the GmbH. The founders are generally liable only on their own share and therefore not jointly and severally. This means that the creditor cannot demand the entire service from a founder according to § 421 BGB. Nevertheless, according to § 24 GmbHG, a founder may be liable beyond his share if another shareholder cannot fulfil his obligation.

Furthermore, the founders are also liable if the GmbH is not registered at all. Only the liabilities have to be paid, but the share capital will not be replenished. This liability is also in the prevailing opinion an internal liability towards the GmbH. Nevertheless, under certain circumstances it may become external liability towards creditors. The main difference between external and internal liability lies in the fact that the creditor can enforce internal liability more difficult. He must first take action against the company in order to be able to take action against individual shareholders.