The dissolution of a limited liability company (GmbH) often raises complex legal issues. A particular case is the dissolution triggered by a shareholder resolution that is tied to the death of a shareholder. This scenario is especially common in person-centric GmbHs. The central question is how such a resolution should be legally classified and whether it is valid. Two key interpretations are under discussion:
Genuine Dissolution Resolution with a Suspensive Condition: This interpretation considers the resolution a dissolution resolution under § 60 (1) No. 2 GmbHG, merely subject to a suspensive condition (the death of a shareholder).
Limitation of the Company's Duration: Alternatively, the resolution could be viewed as a resolution amending the articles of association, limiting or altering the company’s duration. This would require an amendment to the articles of association under § 3 (2) GmbHG. Any limitation of duration under § 3 (2) GmbHG must meet the criteria for a term limitation under general civil law principles, including being sufficiently precise and unambiguous based on the objective interpretation of corporate provisions.
Distinguishing Between a Condition and a Limitation
This differentiation is crucial because it determines the formal requirements for the resolution. Under general civil law principles, a condition differs from a limitation in that the "if" of a condition is uncertain, whereas a limitation presupposes the certainty of an event occurring, with only the exact timing being unknown (Lindow, in: BeckOGK, May 1, 2024, GmbHG § 3 para. 153).
Time Limitation in the Articles of Association
The dissolution of a GmbH is generally governed by the grounds for dissolution specified in § 60 (1) GmbHG. One possible approach is dissolution pursuant to § 60 (1) No. 1 GmbHG, based on the expiration of a specified period in the articles of association—such as the death of a shareholder being defined as a dissolution event (Lindow, in: BeckOGK, May 1, 2024, GmbHG § 3 para. 153).
Such a provision is recognized by case law and legal literature, provided the time of the company’s dissolution is sufficiently determinable (see BayObLGZ 1974, 479 [482]; Kleindiek, in: Lutter/Hommelhoff, GmbHG, 21st ed. 2023, § 60 para. 2). However, the clause must be clearly worded, and the shareholders’ intention must be explicitly expressed to avoid legal uncertainties.
Dissolution Resolution
If the articles of association do not contain such a provision, the company can also be dissolved through a resolution under § 60 (1) No. 2 GmbHG. Such a resolution is generally not considered an amendment to the articles of association and therefore does not require notarization to be effective (Kleindiek, in: Lutter/Hommelhoff, GmbHG, 21st ed. 2023, § 60 para. 5).
An exception arises if the interpretation allows for multiple readings, or if the articles of association specify a minimum duration for the company that would be altered by the resolution. In such cases, a shareholder resolution amending the articles of association would be required, subject to the requirements of § 53 GmbHG. These requirements include a qualified majority of three-quarters of the votes cast and notarial certification of the resolution (Kleindiek, in: Lutter/Hommelhoff, GmbHG, 21st ed. 2023, § 60 para. 5).
Conditional Dissolution Resolution Tied to the Death of a Shareholder
A GmbH can be dissolved either through a suspensive (not resolutive) condition or through a limitation (Kleindiek, in: Lutter/Hommelhoff, GmbHG, 21st ed. 2023, § 60 para. 5). In ambiguous cases, it must be determined whether the resolution truly aims at dissolving the company or merely at defining a fixed duration (Kleindiek, in: Lutter/Hommelhoff, GmbHG, 21st ed. 2023, § 60 para. 5).
Only if the resolution genuinely intends the dissolution of the company can § 60 (1) No. 2 GmbHG apply. Otherwise, it constitutes a limitation of the company's duration under § 3 (2) GmbHG, requiring a formal amendment to the articles of association. If the wording of the resolution does not directly aim at dissolution but instead suggests a limitation (e.g., phrases like "ending," "up to," etc.), this points to an amendment to the articles of association.
The distinction is not always straightforward. A key criterion for differentiation is the temporal proximity of the dissolution date. If the specified date is near (e.g., within the same fiscal year), it is more likely to be considered a simple dissolution resolution (RGZ 145, 99 [101]; Scheller, in: Scholz, GmbHG, Commentary, 12th ed. 2021, § 60 para. 23). In contrast, the Reichsgericht (RGZ 65, 264, 267) argued that any deviation from the otherwise immediate effect of dissolution should always qualify as an amendment to the articles of association.
Unless specific facts indicate otherwise, the death of a shareholder is normally unlikely to occur in the foreseeable future. Hence, the resolution is more likely to be classified as a limitation rather than a true dissolution.
Conclusion
The interpretation and legal classification of a suspensive conditional dissolution resolution tied to the death of a shareholder can be complex. There are strong arguments—and in the interest of legal certainty, it is the most prudent approach—to classify such a resolution as an amendment to the articles of association, which must meet the requirements of § 53 GmbHG.
The limited case law available on this issue suggests exercising particular caution in practice. Therefore, the implementation of such resolutions should be carefully reviewed to ensure compliance with both civil law and corporate law requirements.
Comentários