The dissolution of a limited liability company (GmbH) often involves complex legal issues. A particular case is dissolution by shareholders’ resolution that is linked to the death of a shareholder. This scenario arises particularly frequently in owner-managed GmbHs. The key question is how such a resolution is to be classified legally and whether it is valid. Two central interpretations are under discussion:
1. Genuine dissolution resolution subject to a suspensive condition: This could be a dissolution resolution within the meaning of Section 60(1) no. 2 GmbHG, which is merely subject to a suspensive condition (the death of a shareholder).
2. Fixed term of the company: It could be a resolution amending the articles of association that causes or changes a fixed term of the company. This would mean that, pursuant to Section 3(2) GmbHG, an amendment to the articles of association would be required. As a limitation to a certain period within the meaning of Section 3(2) GmbHG, anything that meets the requirements for a fixed term under general principles of civil law may be considered. In addition, under the objective standard of interpretation for provisions of the articles of association, it must be defined with sufficient precision and clarity.
This distinction is of considerable importance, as it affects the formal requirements for the resolution. Under general principles of civil law, a condition differs from a fixed term depending on whether the occurrence is uncertain (condition) or whether its occurrence is certain and only the exact time of occurrence is uncertain (Lindow, in: BeckOGK, May 1, 2024, GmbHG Section 3 para. 153).
Time limitation in the articles of association
The dissolution of a GmbH is generally governed by the grounds for dissolution set out in Section 60(1) GmbHG. One possible approach would be dissolution of the company pursuant to Section 60(1) no. 1 GmbHG upon expiry of a period specified in the articles of association, provided that the articles contain a corresponding provision—for example, the death of a shareholder as a ground for dissolution (Lindow, in: BeckOGK, May 1, 2024, GmbHG, Section 3 para. 153).
Such a provision is recognised by case law and legal literature, as the date of dissolution of the company is sufficiently determinable (see BayObLGZ 1974, 479 [482]; Kleindiek, in: Lutter/Hommelhoff, GmbH Act, 21st ed. 2023, Section 60 para. 2). The prerequisite is that the relevant clause in the articles of association is clearly worded and that the shareholders’ intention is clearly expressed in order to avoid legal uncertainties.
Dissolution resolution
If the articles of association do not contain a corresponding provision, the company may also be dissolved by a dissolution resolution pursuant to Section 60(1) no. 2 GmbHG. As a rule, a dissolution resolution does not constitute an amendment to the articles of association and therefore does not require notarial certification in order to be effective (Kleindiek, in: Lutter/Hommelhoff, GmbH Act, 21st ed. 2023, Section 60 para. 5).
An exception applies, however, if the interpretation allows for different readings or if the articles of association stipulate a minimum term of the company and this is changed by the dissolution resolution. In that case, a shareholders’ resolution amending the articles of association would be required, which is subject to the requirements of Section 53 GmbHG. These include a qualified majority of three quarters of the votes cast and notarial certification of the resolution (Kleindiek, in: Lutter/Hommelhoff, GmbH Act, 21st ed. 2023, Section 60 para. 5).
Dissolution resolution subject to a suspensive condition upon a shareholder’s death?
The dissolution of a GmbH may be resolved either subject to a suspensive (not resolutory!) condition or for a fixed term (Kleindiek, in: Lutter/Hommelhoff, GmbH Act, 21st ed. 2023, Section 60 para. 5). In such a case, it must be examined in each individual case whether the resolution actually aims at dissolving the company or whether it merely seeks to give the company a fixed term (Kleindiek, in: Lutter/Hommelhoff, GmbH Act, 21st ed. 2023, Section 60 para. 5).
Only if the actual dissolution of the company is intended can Section 60(1) no. 2 GmbHG apply. Otherwise, it constitutes a limitation of the company’s term within the meaning of Section 3(2) GmbHG, which requires a formal amendment to the articles of association ( Kleindiek, in: Lutter/Hommelhoff, GmbH Act, 21st ed. 2023, Section 60 para. 5). If the wording does not directly aim at dissolving the company, but rather the interpretation of the wording suggests a time limitation ("end", "until", etc.), this indicates an amendment to the articles of association.
The distinction is not always straightforward. An important criterion for delineation is the temporal proximity of the resolved dissolution date. The closer this date is (e.g., within a financial year), the more likely it is to be a mere dissolution resolution (RGZ 145, 99 [101]; Scheller, in: Scholz, GmbH Act, Commentary, 12th ed. 2021, Section 60 para. 23). A different view was still taken by the Reichsgericht in RGZ 65, 264, 267: it argued that any deviation from the otherwise immediate effect of dissolution must always be classified as an amendment to the articles of association. As a rule, and in the absence of specific other connecting factors, it will likely be assumed that a shareholder’s death will not occur in the foreseeable future.
Conclusion
Interpreting and legally classifying a GmbH dissolution resolution subject to a suspensive condition tied to a shareholder’s death can be difficult. There are strong arguments, and the imperative of the most legally secure approach, in favour of classifying such a resolution as a shareholders’ resolution amending the articles of association, which would therefore have to meet the requirements of Section 53 GmbHG.
The—so far as can be seen—scarcely existing case law on this issue gives reason to exercise particular caution in practice. The practical implementation of such provisions should therefore be carefully reviewed in order to meet both civil-law and corporate-law requirements.
