Current case law — partnerships

1. Conclusive establishment of a civil law company

The new version of Section 1175 ABGB by the GESBR Reform Act, which for civil law companies (GesbR) a”common purpose“required was not subject to a change in content compared to the earlier version of this provision, which is based on a”common benefit“had switched off, connected.

Whether a civil law company has been conclusively established as a result of the cooperation of two persons must always be assessed on the basis of the circumstances of the individual case.

Supreme Court 22.12.2021, 6 Ob 237/21b; RIS Justice RS0110698

2. Universal succession and transfer of assets by the last remaining partner of a limited partnership

If the sole limited partner leaves the limited partnership and the sole general partner takes over the company's assets in accordance with Section 142 UGB, the general partner becomes the overall successor of the KG. Irrespective of the continued registration of the KG in the commercial register, this leads to the dissolution and completion of the KG.

Supreme Court 7.5.1958, 6 Ob 191/21p

3. Admissibility of the unit KG

The Einheits-KG, in which the limited partnership (KG) itself is the sole shareholder of its general partner GmbH, is admissible.

Supreme Court 17.9.2014, 6 Ob 185/13v

4. Section 142 UGB does not apply to the association of all shares in a cooperative

Even if all cooperative shares are transferred to a GmbH as the acquirer, Section 142 UGB does not apply. The cooperative is therefore not converted to the acquirer of all shares (= GmbH).

Supreme Court 16.12.2013, 6 Ob 160/13t

5. To sue for shareholders and to assert claims arising from the termination of a civil law company

Claims arising from the company relationship and social claims of the company can only be asserted in isolation during the liquidation of the civil law company (GesbR) in accordance with the purpose of liquidation, i.e. only if and to the extent necessary for the liquidation. Otherwise, they are usually included as dependent invoice items in an overall statement similar to a current account.

The individual shareholder of GesbR can also assert social claims from the company by means of actio pro socio (Section 1188 ABGB).

The internal settlement of the shareholders, which includes the claim for the distribution of liquidation proceeds among the shareholders, is no longer part of liquidation. It is either made by mutual agreement or must be settled in the process of litigation.

Supreme Court 20.12.2023, 6 Ob 96/23w