No External Liability of the Atypical Silent Partner of a Limited Partnership

When you are a silent partner participating in a limited partnership KG you want your participation silent but also if you are on par with a limited partner in the partnership agreement with regard to his rights and duties The BGH gave with its judgment of March 1, 2010 (re II ZR 249/08) new input to its previous case law.


In 2006, BGH decided that a silent partner participating in a GmbH is to be treated as a standard GmbH shareholder with regard to the capital maintenance provisions if he is on a par with a GmbH shareholder with respect to his equity investment and his influence.

In the reported case, the complainant relied on this case law and asserted claims against the silent partner under §171 HGB up to the amount of the contribution of the partner reputedly not yet provided. This argumentation fell on deaf ears at the BGH, however: Since a non-incorporated firm is concerned and not a corporation, a claim cannot be derived from the capital protection rules of German limited liability company law or stock corporation law.


If the silent partner has actually not yet provided his contribution, he is not fully released from the liability for his contribution. At least the company itself is entitled to expect that he can provide his contribution - but only for three years when a statute of limitations makes it moot.


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