Liability of GbR Partners for the Costs of Insolvency Proceedings

The partners of a civil-law partnership (GbR) are in principle personally and unlimitedly liable for the liabilities of the partnership. There are exceptions to this only in rare cases. For example, under § 137 of the German Commercial Code (HGB), partners who have withdrawn are liable only for old liabilities of the partnership, and only for a period of at most five years; this is against the background that, after their withdrawal, they can no longer influence the further development of the partnership. However, this assessment cannot be transferred to insolvency proceedings of the partnership and the question of who bears the costs in insolvency proceedings.

The costs of insolvency proceedings (in particular court costs and the insolvency administrator's remuneration) are in principle to be borne by the insolvent debtor. In cases of an insolvent GmbH, the costs of the proceedings are primarily taken from the insolvency estate. In the case of a GbR, this is not strictly necessary as long as there are solvent partners against whom the insolvency administrator can bring claims.

In particular, (potential) partners of a GbR should be aware that, in the event of the partnership's insolvency, they may be personally liable for the costs of the insolvency proceedings. This can have considerable financial consequences and should be taken into account when deciding for or against participation in a GbR or when choosing the specific legal form.