Formation of a GmbH: Liability in the pre-formation company
Establishing a GmbH is very complex and it is important to pay attention to all the small details so that it runs smoothly and legally.
In the following, we inform you about a point that often gets overlooked but is of great importance.
Advantages of a GmbH
If you have established a GmbH, there is, among other things, the advantage of limited liability. This means that the personal assets of the shareholders are protected and only the company with its assets is liable, according to § 13, paragraph 2 of the GmbHG.
Formation process
When forming a company, you go through several steps before registration in the commercial register, which can roughly be divided into developing a business plan, drafting the articles of association, notarizing the articles of association, appointing the corporate bodies, paying in the share capital and filing for registration in the commercial register.
Caution
When it comes to liability, caution is required in the formation phase of a GmbH. In the period before the articles of association are notarized, you are in the stage of the so-called pre-formation company.
In this phase, the company usually takes the legal form of a GbR or OHG. Contracts concluded during this phase are therefore not subject to limited liability but to the personal liability of the partners pursuant to § 721 BGB.
You can therefore be held personally liable with your private assets for the company’s liabilities. Only once the articles of association have been notarized are the liabilities incurred attributable to the company’s assets. It is therefore advisable to enter into contracts and other obligations in the name of the GmbH only once the articles of association have been notarized, as otherwise you cannot take advantage of one of the greatest benefits of a GmbH: limited liability.
