The new law on defective resolutions under the MoPeG
In addition to these changes concerning the GbR, the legislature is also revolutionizing the way in which defective resolutions are handled in the OHG and the KG. The previously unitary system of validity review via declaratory actions will henceforth be converted to a dualistic system of actions for annulment and declaratory actions, as is known from the law of corporations.
For you as a practitioner, this therefore presents an entirely new situation that requires significant attention on the part of both the company and the shareholders.
Distinction between void, voidable, and invalid resolutions
Whether a resolution is void, ineffective, or merely voidable is a crucial distinction. While void resolutions are irremediable and have no legal effect, voidable resolutions are cured upon the expiration of the period for challenging them and take full legal effect.
Actions taken based on void resolutions lack a legal basis. If, for example, payments are made based on a void resolution, the managing director commits a breach of duty and becomes liable for damages to the company.
How, then, is it determined whether a resolution is void or voidable?
From the wording of the statutory text, it can initially be inferred that the legislature assumes a rule-exception relationship. In principle, this means that a defective resolution is generally considered voidable, whereas nullity is intended to apply only in exceptional cases. This exception applies only in cases of violations of mandatory legal provisions. Rights of a shareholder that pertain to the core aspects of their membership are indispensable; consequently, the rights to participate in shareholder meetings, the right to information, or the right to bring legal action against unlawful shareholder resolutions are inalienable.
Resolutions that violate discretionary law—i.e., individual provisions of the articles of association or statutory provisions that may be waived—are voidable. Examples include specific voting majorities, provisions regarding grounds for withdrawal, and the amount of severance pay.
Legal protection against defective resolutions
Why is this distinction relevant?
The relevance for you stems primarily from the short three-month statute of limitations for an action to set aside a resolution under § 112(1) HGB. After this period, the resolution is deemed cured by the passage of time and becomes unchallengeable. Here, the legislature attaches greater weight to legal certainty than to the scope of protection afforded to the individual. The commercial divisions established at the regional courts have exclusive functional jurisdiction over actions to set aside resolutions.
If, on the other hand, you wish to have the nullity of a passed resolution reviewed by a court, the so-called declaratory action is the appropriate remedy. Since the resolution violates the inalienable rights of the affected shareholder or has been effectively challenged, the resolution cannot be cured by the passage of time. Therefore, unlike with an action to set aside, there is no statute of limitations here. Due to its nullity, it has no legal effect from the outset. A managing director who acts on null and void resolutions is acting in breach of duty and must compensate the company for the resulting damage.
A special scenario is the combination of an action for annulment and an action for a declaratory judgment, previously known only from the law of corporations. This is now also applicable to partnerships, provided that a negative resolution is at issue. If this rejection is established by a meeting chairperson or results from minutes signed by all partners, this finding must first be set aside by an action to set aside the resolution in order to then decide on the disputed agenda item in a formative manner by means of a so-called positive action for a declaratory judgment on the resolution.