Managing Director’s Power of Agency for a GmbH must be Simply Understood

The shareholders of a GmbH wanted to make things simple and cheap with only one registration of their managing directors. This registration was also to include that the directors also had power of attorney for other connected corporations. Is this possible? The OLG Stuttgart gave an answer on October 18, 2007 (re 8 W 412/07).


§5 III of the notary company contract (des notariellen Gesellschaftsvertrages) reads:

"For all action between the company and companies in which the company is a fully liable partner, the managing directors are exempt of the limitations of §181 BGB.”

The registry denied entering the above stipulation because it considered this clause to be too indefinite to describe the powers of agency. Further details beyond this stipulation have to considered to exactly determine the scope of representation.

OLG Stuttgart held that following §10 I 2 GmbHG, the exact power of agency of any and all managing directors must entered into the commercial registry. The same is true with exemption of the limitation to represent oneself towards the company as §181 BGB prohibits. It does not matter if this exemption is only limited to certain types of transactions or not. Important is that the exact scope of power must be exclusively obtained from the entry in the registry. Even taking a look at other entries in the same registry already violates this rule. Consequently, the entry in this case should have been to also name in which corporations the company has shares. Anything else would violate the principle of the publicity of the registry (§15 HGB). §15 HGB guarantees the commercial registry is correct. No opposing facts may be held against a person who legitimately trusts the entries of the commercial registry in legal transactions.



Published on the old CMS: 2008/6/3
Read on the old CMS till November 2008: 2,489 reads

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