A civil law partnership ("GbR") is quickly formed - even without a written partnership agreement. This can lead to problems if the parties involved have failed to expressly agree on all the key points of their cooperation. In its ruling of 22.01.2019 - II ZR 59/18 - the BGH has now decided that a partner in a GbR has a legal interest in having the amount of his shareholding in the company clarified in court after its dissolution and that he can also enforce this by way of an action for a declaratory judgment.
In the opinion of the BGH, there is also a legal interest in establishing the dissolution of the company if the parties agree that no company exists (any more) in the meantime, but the effective conclusion of a partnership agreement and the dissolution of the company, which is only then possible, are disputed.
The decision is the consistent continuation of the BGH's established case law on the requirements for an interest in a declaratory judgment.
Facts of the case
The plaintiff and the defendants decided to work together in 2009 and acted under the name "B. G. H. Rechtsanwälte Steuerberater Wirtschaftsprüfer".
In spring 2011, a dispute arose between the parties. One of the defendants invited the plaintiff to a shareholders' meeting in mid-2011. The defendants then informed the plaintiff that his exclusion from the partnership had been decided unanimously. At the end of 2011, the plaintiff terminated the partnership agreement with immediate effect and requested the defendants to cooperate in determining his settlement assets. The defendants refused and argued that an effective partnership agreement had never been concluded.
The plaintiff brought an action for declaratory judgment before the Regional Court. The Regional Court found, as requested, that the partnership was not dissolved by the (annulment) shareholders' resolution of August 2011, but only by the plaintiff's notice of termination. However, it rejected the application to determine the share of profit participation as unfounded.
On appeal, the Higher Regional Court partially amended the Regional Court ruling and dismissed the applications regarding the determination of the dissolution by termination and the profit share as inadmissible. The plaintiff successfully appealed against this decision. The judgment was set aside and referred back to the OLG.
Declaratory action admissible
In contrast to the lower court, the BGH affirmed the admissibility of the declaratory action. The court assumed that the requirements of section 256 para. 1 ZPO were met for both applications. With regard to the application for a declaratory judgment on equal profit sharing, a legal relationship within the meaning of Section 256 para. 1 ZPO existed. The plaintiff also had an interest worthy of protection for this application. Priority of the action for performance, which generally leads to the exclusion of the interest in a declaratory judgment, cannot be considered because the requirements for the assertion are not met due to the lack of a settlement of the company and the preparation of a final account (Section 734 BGB).
The interest in a declaratory judgment was also to be affirmed with regard to the application for a declaration that the partnership had been dissolved as a result of the plaintiff's termination. According to established BGH case law, a legal interest in determining the existence or non-existence of a legal relationship exists if the plaintiff's right or legal position is threatened by a current danger or uncertainty and the judgment sought is suitable for eliminating this danger. As a rule, a danger in this sense already exists if the defendant seriously contests the plaintiff's right.
In the oral hearing, the defendants had only alternatively put it beyond dispute that the company had been dissolved in the meantime as a result of the plaintiff's termination. On the surface, however, the defendants argued that dissolution was ruled out due to the lack of an effective partnership agreement.
The BGH sees this submission by the defendants as a serious denial of the plaintiff's rights, so that it also affirms an interest in a declaratory judgment for this application.
Dr. Bernd Richter and Milena Duggen