Silent partner is entitled to a (eventual) Compensation balance according to the rules of the defective society

The principles of faulty society are on a multi-unit silent society, in which the investor, participating with a capital contribution as silent partners, join an existing from all silent partners and the owner of the trade sector public company, apply with the proviso, that such an acceding silent partners holders of the commercial activity because of a pre-contractual fault enlightenment not by way of damages, the rescission of its shareholding by return of his deposit may require train to train to transfer his rights from the silent participation of the; rather, he is entitled to a (eventual) Compensation balance according to the rules of the defective society and in addition, depending on the financial situation of the trade operation and the level of – hypothetical – Compensation claims of the other silent partners, entitled to compensation for his unmatched by the compensation claim damages.

BGH II ZR JUDGMENT 383/12 from 19. November 2013

HGB § 230

The principles of faulty society are on a multi-unit silent society, in which the investor, participating with a capital contribution as silent partners, join an existing from all silent partners and the owner of the trade sector public company, apply with the proviso, that such an acceding silent partners holders of the commercial activity because of a pre-contractual fault enlightenment not by way of damages, the rescission of its shareholding by return of his deposit may require train to train to transfer his rights from the silent participation of the; rather, he is entitled to a (eventual) Compensation balance according to the rules of the defective society and in addition, depending on the financial situation of the trade operation and the level of – hypothetical – Compensation claims of the other silent partners, entitled to compensation for his unmatched by the compensation claim damages.

BGH, Judgment of 19. November 2013 – II ZR 383/12 – OLG München

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There II. Civil Division of the Federal Court from the hearing 17. September 2013 Presiding Justice Prof. Dr. Bergmann and the judge Prof. Dr. Strohn, the judges Caliebe and Dr. Reichart and the judge Sunder

hereby:

On appeal by the plaintiff, the judgment is the 20. Civil Division of the Higher Regional Court of Munich from 28. November 2012 the cost point and be released immediately, as the appointment of the plaintiff's with the main applications (Petitions to I. Bis VIII.) has to rejected.

In the scope of the waiver is the case for a new hearing and decision, also on the cost of the revision process, referred back to the Court of Appeal.

As of right

Facts:

The plaintiff participated with accession declaration of 19. December 2002 (Anlage K 1) an atypical silent partner of the defendant limited company under the participation program "Classic” with a "Einmaleinla-ge” of DM 20.000 plus a premium. At the same time he drew the participation program "Plus”, in which the distributions of

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100 % the "single premium” reinvested plus the issue premium. The plaintiff contributed to his share in total 11.452,94 €. Income from equity have not been paid to him, but in the context of the participation program "Plus” newly created.

Claiming, the relevant investment decision for its issue prospectus as numerous, set forth by him in detail error and the defendant was therefore obliged to pay damages to him, has the plaintiff by the defendant primarily repay its deposits ge paid in the amount of 11.452,94 € train to train to transfer all rights from the silent partnership, Compensation for lost profit in the amount of 7.202,75 Demands € and extrajudicial costs, as well as several applications seeking the determination of liability for damages of the defendant.

The district court dismissed the action. The appeal by the plaintiff, with whom he has alternative, apart enforcement credit balance taken the defendant to obtain information about the height of from his participation and payment of resulting from the in-formation in claim amount, is unsuccessful. With approved by the Court of Appeal revision, their rejection of the defendant applied, pursued the plaintiff be further relief sought by the Hauptan contracts.

Reasons for the Decision:

The revision is successful and results in the revocation of the contested decision to refer the case back to the Court of Appeal, so far as the appeal of the plaintiff was dismissed by the main applications submitted on appeal.

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I. The Court of Appeal (OLG München, ZIP 2013, 414) has executed the statement of reasons for its decision essentially:

A claim for compensation for alleged by him drawing damage from bad standing the plaintiff against the defendant according to the principles of the faulty society not to. According to these principles, it would preclude a shareholder in principle, to make against the enforcement set in society in the way of damages in a claim for repayment of the contribution paid claims; Rather, he is regularly limited to his compensation claim. The principles about the failing company are independent regularly applicable on the design of the contract as typical or atypical silent partnership on a silent society. Whether they are, however, a two-tier silent society, as the principles of the faulty company would then have not preclude a claim for return of the deposit, if the owner of the trading business is obliged, to provide the silent partner in the way of damages as, as this would not have closed the social contract.

The society relationship is here but no two-tier, but there was a multi-unit silent partnership in the form of a public company, when preclude the principles governing the faulty one company to the shareholder entitlement to the repayment of deposit. Egg ne two-tier silent partnership lies before, if each silent partner stand on its own with the owner of the trading business in a Gesellschaftsver ratio. In the multi-membered silent company several silent partners are connected to the owner of the trading business in an ownership relationship. In this social contract is in § 1 No.. 2 explicitly determined, that the shareholders together with the business-

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owner, a so called. multi-membered atypical silent partnership formed, what hot, that only an atypical silent partnership between the business owner and all partners there. Those rules are clear and together with the other provisions of the partnership agreement legally binding by the plaintiff ID card-ing his "Declaration” to the subscription form (Anlage K 1) been accepted.

That the shareholders according to the principles of the faulty society was confined to his compensation balance and could not demand the rescission of his contribution and the repayment of his capital contribution by the Company, reasons mainly due to the consideration, that the legitimate interests of the other shareholders would have to be taken into account th. The co-shareholders, could assert simi-lar rights with respect to the circumstances of their accession, a race to the corporate assets would be exposed. This compared to a contractual legal exchange ratio is far more complex interests justifies, the individual shareholder as a result of his compensation claim would refer to. Since the legal relationship of breast-feeding in a multi-unit company was not limited only to the owner of the trading business, but all equally worthy of protection Breastfeeding (together with the business owner) were in a federation, could damage claims, resulting from a candidate based on faulty decision-making, not be made without regard to the interests of the other shareholders who claimed-the. This should apply in any case, when – as the defendant – which would not affect co-shareholders as a public company on the accession of the individual and any enlightenment errors were therefore attributable to them under any point of view.

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Since the claim asserted by the plaintiff to compensation for the signing of damage thus conflicted with the principles of the faulty-society, I'm not sure at, whether the other conditions for such a claim were available. Content not to decide on the alternative directed to calculation and payment of the balance of apportionment stage action is, since it is an after § 533 ZPO not admissible change RELATES.

II. The revision of the plaintiff is justified. The court had accepted error of law, that the parties did not merely a two-tier society relationship has been established, but the plaintiff a multi-link dormant company joined in the form of a public company, in place after Invollzugsetzung in the event of any on-fänglicher shortcomings, the principles of the society faulty application. Contrary to the opinion of the court excludes the application of the principles of faulty society entitled the plaintiff to compensation for financial losses, him – after its submission – have arisen to society by breach of duty behavior of acting for the defendant persons in connection with its accession, but not from the outset. Even with application of the principles of the faulty company, the investor can, who has participated in a multi-unit silent society, taking into account of him upon termination of his (faulty) Require legal partnership relationship, where appropriate, are entitled to claim compensation from the business owner replacement of damages beyond, if thereby the equal satisfaction of any severance- or dispute claims of the remaining silent partner is not at risk.

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1. According to the established case law of the Senate, the principles of the faulty society are also applicable to typical or atypical silent companies (BGH, Judgment of 29. November 2004 – II ZR 6/03, ZIP 2005, 254, 255; Judgment of 23. July 2013 – II ZR 143/12 Rn. 17 mwN). This does not conflict, that exists in the silent company no joint property (BGH, Judgment of 29. November 1952 – II ZR 15/52, BGHZ 8, 157, 166 f.; Judgment of 25. November 1976 – II ZR 187/75, World Cup 1977, 196, 197; Judgment of 22. October 1990 – II ZR 247/89, , A-RR 1991, 613, 614; Decision of 21. September 2009 – II ZR 250/07, ZIP 2009, 2155 Rn. 6 mwN). The application of the principles of faulty society is based on rather general, that it would lead to intolerable results, to a stable and actually accomplished power community in the form of a society, for which provided the participants contributions and created value, have used the odds and jointly assumed the risk, repealed with retroactive effect and thus to treat them, as if it had never existed-times. A – already by paying the deposit (BGH, Judgment of 29. November 2004 – II ZR 67/03, ZIP 2005, 254, 255; Judgment of 23. July 2013 – II ZR 143/12, ZIP 2013, 1761 Rn. 17) – in consummation set faulty society relationship is therefore independent of the individual design of the case do not regularly void ab initio, but voidable due to any initial defects only with effect for the future. This also applies to the (atypical as typical) silent partnership. She is also a real risk community with a mostly agreed on long division of the Ge-winns and loss of the company, which also includes the silent partner has provided its contribution. The aspects, which argue for the application of the rules of the defective society, therefore, meet in principle equally to (BGH, Judgment of 29. June 1970 – II ZR 158/69, BGHZ 55, 5, 8 f.).

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The legal recognition of the defective society is only as its limit, where conflict with important interests of the public or of particularly vulnerable groups (BGH, Judgment of 29. June 1970 – II ZR 158/69, BGHZ 55, 5, 9; Judgment of 25. March 1974 – II ZR 63/72, BGHZ 62, 234, 241). Even the fact, that a silent partner has been the social contract determined by fraudsters gerisches behavior of the business owner to conclude, but does not justify it, to eliminate the legal facts established by the Involl-zugsetzung of society relationship retroactively and to bring the general rules of civil law on the application instead of the company law (vgl. BGH, Judgment of 12. More 1954 – II ZR 167/53, BGHZ 13, 320, 323; Judgment of 29. June 1992 – II ZR 284/91, ZIP 1992, 1552, 1554). The protection of the deceived thereby is sufficiently safeguarded, that the deception for him constitutes an impor-tant cause for termination of the Company (BGH, Judgment of 29. June 1970 – II ZR 158/69, BGHZ 55, 5, 10).

2. The Senate is initially also for claims for breach of pre-contractual information duties at the conclusion of a silent social contract assumed, that the principles of the faulty society prohibit a retroactive termination of the contract and contrary to the termination of the Company's ratio of the enforcement of a directed to refund the deposit claim for damages arising from pre-fault Lichem (BGH, Judgment of 24. More 1993 – II ZR 136/92, ZIP 1993, 1089, 1090 f.). Later, he adopted, that in any event, such a claim for damages with the desire, to provide the silent partners as, as if he had the social contract is not completed and not paid his deposit, in a two-part silent society is not subject to the limitations of the principles of faulty society (BGH, Judgment of 19. July 2004 – II ZR 354/02, ZIP 2004,

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1706, 1707; Judgment of 13. September 2004 – II ZR 276/02, ZIP 2004, 2095, 2098; Judgment of 29. November 2004 – II ZR 6/03, ZIP 2005, 254, 256; Judgment of 21. March 2005 – II ZR 140/03, ZIP 2005, 753, 757).

In support he has on the specifics of the silent partnership (in the former plant model) parked as opposed to a public company in the legal form of a civil law or a limited partnership. Who would join such a public company, to apply to his property, could at a deficient education on the risks and rewards of the investment project by the Company neither damages nor any reversal of his society participation ask to, because the defective education of the society could not be attributed to. The individual shareholders have on the Accession Treaties of new shareholders will not influence opportunities, Kick the extent not in appear-ance and had been regularly even deceived the contrary in his own entry into society or at least not properly informed. But well have the incoming shareholder claims for damages against the initiators of the Company, against the Gründungsgesell-holders and against those, which are for the shortcomings of its accession responsible otherwise (BGH, Judgment of 19. July 2004 – II ZR 354/02, ZIP 2004, 1706, 1707 f.).

The silent society (after the former plant model) Kick the investors not not an existing public company in, but fancy with the stock corporation founded by the initiator of the investment project, a new – silence – Society. In this case, his legal relationships limited solely to these Aktiengesellschaft. You owe him at a ter-mination of the silent partnership, the severance balance. At the same time exemplary him to the principles of prospectus liability and indebtedness-

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dens upon conclusion, each i.V.m. § 31 BGB and, if applicable. § 278 BGB, for damages. Unlike a public company, the Auseinandersetzungs oriented- and the claim for damages against the same person. Not such a society it is addressed of the company law rescission claim, but solely as owner of the trade sector iS. des § 230 HGB occurring Aktiengesellschaft, with only the silent partnership contract had been concluded and was also obliged essen-ge of damages, compensate for any losses the company law liner. But then could the compensation shall not demanding by the rules on the erroneous company restricted his. The protection of creditors areas not such a restriction, if only because it in the silent company of a through capital APPLY- and capital maintenance rules protected Gesellschaftsver-like commands (BGH, Judgment of 19. July 2004 – II ZR 354/02, ZIP 2004, 1706, 1707 f.). That it could come up with similar damages claims to a creditor race in a variety of silent partners, justify – as elsewhere at a creditors' competition e.g.. compared to a pros-pektverantwortlichen founding shareholders – No other assessment (BGH, Judgment of 13. September 2004 – II ZR 276/02, ZIP 2004, 2095, 2098). The One, due to a lack of prospectus, a breach of the duty of disclosure or for any other reason liable for damages ge-making have, should not benefit from it, that he was simultaneously involved in the closed to the damaged investor social contract (BGH, Judgment of 29. November 2004 – II ZR 6/03, ZIP 2005, 254, 256; Judgment of 21. March 2005 – II ZR 140/03, ZIP 2005, 753, 757). – 11 -

3. In this case, the Senate has, however, left open, whether the restrictions of a directed to rescind claim for damages under the principles of the faulty company may also be omitted, if it is not a two-tier silent partnership, but is to join a multi-unit silent society. This question is now dahinge-based to decide, that in a multi-unit silent partnership in any case apply the principles about the failing company with the proviso in the given configuration in the present case, that the plaintiff is not in the way of damages, the rescission of its shareholding by return of his deposit may require train to train to transfer his rights from the silent participation by the defendant because of a pre-contractual fault of Enlightenment. Rather, he has an entitlement to a (eventual) Compensation balance according to the rules of the faulty th company and supplemental, depending on the financial situation of the trade operation and the level of – hypothetical – Compensation claims of the other silent partners, entitled to compensation for his unmatched by the severance payment entitlement damage.

a) In the present case, the legal relationship between the plaintiff and the defendant and the other silent partners depend on the emission in the prospectus of 2001/2002 (Anlage K 2) printed atypically silent partnership contract (hereinafter: GV). After used by the defendant, by the applicant on 19. December 2002 signed the "Declaration of accession (Subscription Form) an atypical silent partner” explains the intervener, that applies to his participation printed in the brochure atypical silent partnership agreement (Anlage K 1). In the Declaration is also provided, that the "application” of the intervener is adopted by the Board of the defendant. Through the silent by all partners with their accession declaration as binding recognized silent social contract is thus

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come by contractual agreement, a corporate relationship between all style-ing shareholders and the defendant concluded. The accession of the individual silent partner of this company is, as is usual in public companies (vgl. BGH, Judgment of 17. November 1975 – II ZR 120/74, World Cup 1976, 15 f.; Judgment of 14. November 1977 – II ZR 95/76, World Cup 1978, 136, 137), takes place in the manner, that the defendant has made the neces-sary to declarations of intent on behalf of the already acceded silent part-ners. The authorization by the defendant to the extent required due to the fact, that the silent partners by signing the Declaration in connection with § 1 No.. 3 Have expressly agrees GV, that more atypical silent societies ter participate in the trading business of the defendant.

By the conclusion of the silent partnership contract is a so called. been established multi-unit silent society. This follows from the provisions of § 1 No.. 2 GV. There, the agreement is, that the investors in the commercial enterprise of the defendant partici-pate as atypical silent partners, explicitly explained to the effect, that the shareholders are involved in profit and loss as well as in the hidden reserves of wealth and substance have a comparable limited partners' participation rights (§ 1 No.. 2 Set 2 GV), that they form together with the business owner a so-called multi-membered atypical silent partner (§ 1 No.. 2 Set 3 GV) and that means mehrgliedrig, that only an atypical silent partnership between the business owner and all atypical silent partners is (§ 1 No.. 2 Set 4 GV). The fact that it is not (several) only two-sided silent society relationships between each of the defendants and the individual silent partners is, also arises from the, that pursuant to § 6 GV society heritage Resolutions are passed at shareholders' meetings or by written resolu-tion procedure and after § 15 No.. 1 GV the termination of a

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silent partner is not the total resolution of the silent partnership, but only has the departure of the affected shareholder result.

The presently agreed silent partnership relationship between the defendant and all silent partners is further characterized, that pursuant to § 5 No.. 1 Set 1 GV Although the management is entitled to only the defendant as Geschäftsinhaberin, but it is only authorized to carry out all legal transactions, belonging to the current operating. The defendant shall require the approval of a resolution of the atypical silent partners over the current financial measures in addition to business operations (§ 5 No.. 1 last sentence GV). Shareholder resolutions require either a simple majority of the votes and the votes represented (§ 6 No.. 1 GV) or – about when it changes the social contract – a majority of 75 Percent of the votes cast (§ 6 No.. 2 GV). Shareholders' meetings are convened at least once a year for notification and prior approval of the financial statements of the business owner or are held, when the interests of the Company so requires or if silent partners, representing more than 25 Represent percent of the silent partnership capital, require a shareholders' meeting with a written statement of reasons for such a (§ 7 No.. 1 Set 2 GV).

As part of the profit- and loss sharing is agreed, that the defendant as a result independent agency remuneration, earnings in the amount of 0,75 Prozent p.a. receives Subscribed atypical silent capital (§ 10 No.. 1 GV). Furthermore, it is another pre-gain of up to 10 Percent, once the profit- and Verlustkon th of atypical silent partners are balanced. The atypical silent partners are in the accordance with § 12 To be calculated GV

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Involved tax accounting profit according to the ratio of their paid deposit to the sum of funds on deposit all of atypical silent partners plus the fully paid share capital of the defendant at the time of conclusion of the silent partnership contract. On tax losses of the atypical silent partner takes part corresponding to the ratio of its paid deposit to the sum of funds on deposit all atypical silent partner to the extent of his capital contribution. An involvement of the defendants in the loss does not take place (§ 10 No.. 2 b Satz 2 GV). If a Bilanzver loss through loss involved atypical silent capital contributions can not be met, this is carried forward for offset against future profits at the expense of all atypical silent partners (§ 10 No.. 2 c Satz 2 GV).

The participation of the silent partners in the assets is in accordance with § 9 No.. 1, § 16 GV regulated to the effect, that, in the event of their resignation, or liquidation of the company, the defendant according to the ratio of their services equity stake in the deposit of the other silent partners and the fully paid-up share capital of the business owner "a share in the since their accession to the business of the defendant ge- were assets including the hidden reserves of the reported value assets (hidden reserves = net asset value of the company)” obtain. Based on the determination of the atypical silent minority interests, at termination of the Company severance tax credit is the apart-dersetzungswert for the entire company of the defendant, the participation of the atypical silent partner to the formed since joining assets including the hidden reserves in the defendant as well as its share of the income- and net asset value (Business Value) as the difference between the start- considered and final values, § 16 No.. 1 GV (for expanding implementation of demanding atypical silent partner after the actual

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Business value cf. BGH, Judgment of 13. April 1995 – II ZR 132/94, World Cup 1995, 1277, 1278).

b) The Court of Appeal rightly assumed, that in to the present design of the silent partnership relationship conflict with the principles of the Society of erroneous assertion of damages demanding the silent partner, if the ensuing damage is done in the way of unwinding of participation.

aa) Unlike the investment models, the decisions taken in the Senate 2004 and 2005 based were, , in the present design not only a plurality of independent, only two-membered silent social relations between the respective investors and the defendant. Through the silent by all the shareholders with their respective accession declaration as binding recognized silent partnership contract is a corporate relationship between all silent partners and the defendant is rather come about through contractual agreement. From the provisions in § 1 No.. 2 GM and especially in § § 6 and 7 GV on shareholder resolutions and the shareholders' meeting and in § 15 No.. 1 GV on the effect of denunciation of society relationship by a silent partner, it is clear, that the well-founded upon submission of the Declaration of right relationship is not limited to only a two-sided sat silent society relationship between the individual investor and the defendant, but joins the silent partner of an existing from the defendant and all silent partners public company.

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bb) In this – permissible (vgl. BGH, Judgment of 10. October 1994 – II ZR 32/94, BGHZ 127, 176, 179) – Design of a standard society relationship between the business owner and several silent Ge-Liable Partners are basically only because of the legitimate interest of the stock concerned, the rules on the erroneous company applied for the. Consisting of the defendant and all silent partners (silence) Society has been set not only by the payment of deposits of the silent partners in law enforcement. That § 7 No.. 1 Set 1 GM is also to take at least once a year a decision on the approval of the financial statements. The profit- and loss compensation is contingent in line with § 10 GV in proportion to the contribution of the individual silent partner in the deposit of all silent partners. It would be contrary to the character of the present design as a permanent site and actually completed service community in the form of a company, for which provided the participants contributions and created value, the odds ge-uses and have jointly assumed the risk, if measures, that have been taken by Invollzugsetzung of society on the basis of the relevant time relevant shareholders' prior, would have to be changed with retroactive effect, as a single (or more re) Sought investors by way of a claim for compensation, Rückgängigma monitoring of its participation, as here the plaintiff with his in August 2011 complaint, filed almost 9 Years after joining the company.

cc) The application of the principles of the defective society is not only in relation to the company consisting of the defendant and all silent partners tern, but also with respect to the bent-th from the Accession Treaty inferred claim for damages against the defendant, which the applicant will be provided so, as he did not participate as a silent partner (against a restitution claim in the more-

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membered atypical silent partnership with partly different reasons and under different conditions also MünchKommHGB / K. Schmidt, 3. Ed, § 230 Rn. 133 ff.; Westermann, Manual unincorporated companies, Rn. 221b ff.; lesson., VGR 2009, 145, 165 f.; Wälzholz, DStR 2003, 1533, 1535; Hey, NZG 2004, 1097, 1098; Armbrüster / Joos, ZIP 2004, 189, 192; Bayer / Riedel, NJW 2003, 2567, 2572 Fn. 56; a restriction on the spare demanding on the "own assets” of the business owner concen, Hard-writing H. P. Westermann, 2008, S. 1133, 1153 f.; against a differentiation between claims for damages and other consequences of nullity Shepherd, ZHR 2006, 373, 391 ff., However, the principle is opposed to the application of the doctrine of the faulty society at the silent society; vgl. further MünchKommBGB / Ulmer / Shepherd, 6. Ed, § 705 Rn. 359 f.; Shepherd in Großkommentar / HGB, 5. Ed, § 105 Rn. 329 f.; Soergel / Hadding / Kießling, BGB, 13. Ed, § 705 Rn. 92; to applying the principles of the faulty company at investor, be involved in the pending registration as atypical silent partners with appropriate application of the provisions of the limited partnership agreement as limited partners in the Commercial Register to th, vgl. BGH, Judgment of 18. July 2013 – IX ZR 198/10, ZIP 2013, 1533 Rn. 29).

Although the defendant is also in the present design as merely two-sided silent partnership relationships as proprietor of the Commercial werbes iS. des § 230 HGB and not breast-feed from all shareholders and the defendant existing company law addressee was given after completion of the erroneous legal partnership relationship severance- or dispute claim. In an isolated analysis, existing solely on the legal separation between the defendant and the acting outward only as an internal company (satisfy) Turns off society between the defendant and all silent partners, however, remain unconsidered, that the rules regarding the existence of the individual investments

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have been agreed, including the legal consequences of termination of the partnership agreement of consisting of all silent partners and the defendant company and made the provisions on dispute settlement and leaving a sleeping partner with a view to the totality of all silent partners. Also with regard to the asset allocation would not do justice to a mere legal relationships between each of the individual silent partners and the defendant based approach to economic realities of the present design. Although the deposit payment of the silent partners are following the use of funds control by the trustee (§ 5 No.. 2 GV) passed into the property of the defendant and has which consists of the defendant and all silent partners society as a consequence of the above is no corporate assets. When the Debtor regulated in atypical silent partnership agreement severance- and dispute claims comes demge pursuant even the defendant in consideration. Nevertheless, the defendants are entitled to the quiet capital is legally linked with an economic analysis of the socio-legal organization formed from the defendant and all silent partners. In this structure, the defendant holds a general partner of a limited partnership to a comparable position, The silent partners are equal limited partners. The defendant gets to a result independent agency remuneration and, where appropriate, a preliminary gain of up 10 Percent; the loss is not involved. With a registered capital of the end 1998 founded as a limited company, Beginning 2000 converted into a public company defendant in the amount of 767.000 €, its increase to 5 My. € the defendant pursuant to § 1 No.. 3 GV is reserve-, and a silent capital of up to 250 My. DM (§ 4 No.. 1 GV) thus, in essence, the silent partners the economic risk of the guided by the defendant company. – 19 -

Because of the interlocking of the individual investments both with each other and with the law of the defendant is entitled to assets, including the funds raised through the contributions of the silent partners' capital, represented here by the between the defendant and all silent partners fabric-te (Inside)Society is effected, the present constellation is also different from the use of initiators, Gründungsgesellschaf-tern or other persons, the shortcomings of the accession of a (satisfy) Company sheep age to a (satisfy) Management is responsible. In these cases, the estates, from those with directed against these personal injury compensation claims satisfaction is sought, legally and economically independent and are not subject to the present structure comparable corporate bond involving all investors. The corporate linkage of the legal relationships of all silent partners to the defendant and to each other makes it not too, in the fact, that there may be silent partners to a creditor race with a heaping use of the defendant, only to see a possible competition with each believer episode. In one caused as here by actual Invollzugsetzung a faulty society corporate bond it already commands the company variable fiduciary duty, that in any case the corporate severance- and from one another implementation of the individual claims (ggf. faulty) Acceded only be asserted by way of an orderly discussion can NEN. For this reason, can exist despite fraudulent misrepresentation by the case law of the Senate even an obligation of any shareholder to pay its deposit-taking, if the Company is wound up after cover of fraud, because the fulfillment of the contribution obligation in such a case, the uniform distribution of the assets of all losses

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deceived shareholders is (BGH, Judgment of 6. February 1958 – II ZR 210/56, BGHZ 26, 330, 336).

4. For the reasons just mentioned, the application of the principles of the defective society leads indeed to, that an investor is not in the way of damages may require back-gängigmachung his participation in a design such as the present. He is, however, – also independent of a (faulty) agreed time limit – entitled, the silent partnership relationship, citing the (alleged) Contract deficiency due immediately effective notice pursuant to § 234 Abs. 1 HGB, § 723 To end the Civil Code, with the result, that, if necessary due to him under the rules of a society contractual severance payments to be calculated (vgl. BGH, Judgment of 3. July 2013 – II ZR 143/12, ZIP 2013, 1761 Rn. 23 mwN). Here, a co-waiger process based on a breach of duty of the business owner with the accession of the silent partner compensation claim is such to be considered, can that the aggrieved investors shall accept his compensation claim and therefore possibly the replacement of a severance payment entitlement in excess of damage require (vgl. BGH, Judgment of 29. June 1970 – II ZR 158/69, BGHZ 55, 5, 10).

When given more here membered silent company because of the set top priority interest of the other shareholders in an orderly transaction further limitation is imposed, that over the legal standards to be calculated according to claim severance addition, claims for damages of the silent partner-the uniform ge satisfaction of severance- must not compromise or confrontation claims the rest of the silent partners. As long as a reduction of such claims of other investors threatens, is the individual investor a ge to the enforcement of breaches of duty in relation to the accession-

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prevented based compensation claim against the business owner (vgl. to concen, Festschrift H.P. Westermann, 2008, S. 1133, 1153 f.). Such an threat to the legitimate interest of other investors in an orderly failure does not threaten, if and to the extent the assets of the Ge-schäftsinhabers at the time the decision on the claim for damages an individual investor both existing at this time (hypothetical) Severance- or dispute claims of all silent partners as well as the compensation claim of the investor's under consideration covers. This is the case, if at a specific time on this fictitious confrontation into account the entire multi-unit silent society would suffice the assets of the business owner, to the (here in accordance with § 16 GV to be calculated hypothetical) Severance- or off-side implementation of all claims completely silent partners, as well as on its own claim for compensation in excess of compensation directed-weighted compensation claim of the plaintiff investor (Here GGF. from the defendant pursuant to § 16 No.. 1 a final paragraph GV according to the proportion of its paid-up share capital at the silent partnership capital respective share of the value of their entire business dispute) to satisfy all or part of. This is not the case, comes however at least one fixed position of the damages claim the reason and amount into consideration, as a result, the (hypothetical) Severance- or Auseinanderset-ing claims of the other silent partners are not endangered.

If the company is actually resolved between all silent partners and survive the termination of the conflict between the principal and all silent partners no Auseinanderset-ing claims more, as the principles of faulty society are a remaining, ggf. not the reason and the amount after already fixed set compensation claim of a damaged investor also

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more accommodating. In the latter case, it may indeed be a "race” come between aggrieved investors with their business against the owner directed-weighted compensation claims. However, the co-shareholders are not to be used as such, opposite but merely as competing with each other as well as other creditors of a debtor. For this reason, it is sufficient for the loss of damage resulting from the principles of faulty society obstacle also, if the remaining assets of the business owner at the time the decision on the ge-oriented against him claim for damages in addition to this the (existing and hypothetical) Severance- or dispute the claims of the other style-ing interest, covers. It is not, however, required, that it is sufficient-even, comparable to other compensation claims (deceived) to satisfy silent partners.

5. Whether and to what extent the plaintiff according to these principles is entitled to a claim for damages against the defendant, the Court of Appeal of its non-standard legal standpoint, not ge-checks. On the grounds of the appeal court to dismiss the complaint, after the main desire therefore have no stock. It also does not arise for reasons other than properly represent (§ 561 Code of Civil Procedure).

Since the declaration of a partner, trying to eliminate his accession with retroactive force, usually his will is expressed, in any case to finish the binding on the Company and the other shareholders with immediate effect (vgl. BGH, Judgment of 19. December 1974 – II ZR 27/73, BGHZ 63, 338, 344 f.; Judgment of 16. December 2002 – II ZR 109/01, BGHZ 153, 214, 223), can also in this case of a termination of the (style pedal) Society relationship be assumed by the plaintiff. That the plaintiff his right to compensation is not the application of an approximately-

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has calculated cent severance tax credit, justifies a (complete) Devia-tion is not the action, because the injured party is not bound readily to an originally selected by him kind of damage calculation (vgl. BGH, Judgment of 18. October 2011 – VI ZR 17/11, NJW 2012, 50 Rn. 4 mwN) and the plaintiff, therefore, an opportunity must be given, not be discussed Arguments to the in the lower courts, set forth above legal requirements to adjust. For the calculation of his severance pay entitlement, the question only further damages claim, undiminished to the fuse of any severance- or Auseinandersetzungs entitlements of the other silent partners looking lock would not prevent-, the plaintiff also relies on the participation of the defendant, the Gemäß § 16 No.. 1 Buchst. g GV has the mandate to determine the severance tax credit an auditor.

On the basis of previous findings of the court and the parties' arguments can not be accepted, that a beyond a compensation claim Schadensersatzbegeh-tion of the plaintiff as surety for potential severance- or Auseinanderset-ing claims of the other shareholders of the success of failure would be. Whether and to what extent such (hypothetical) Claims of the other silent partners exist and may be satisfied out of the assets of the defendant, is not clear and should, where appropriate, the defendant demonstrate and prove, if they wanted to invoke a compensation claim of the plaintiff against over-it, this was because of a threat to the severance- and dispute claims of the other silent partners, at least not at present or unenforceable in full. In addition, the directed to pay a specific amount of damages sought by the plaintiff would be performance even in the case of the existence of such an obstacle to be interpreted, that in any case the finding of the existence of an-

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nes claim for damages is sought at this level. Unless other duties required conditions of the damages claim asserted ge-enter, would be the fact, that the assets of the defendant in the time of the decision to pay any (hypothetical) Severance- or dispute claims and the claim for damages was not sufficient, as in II. 4. performed, a finding of its existence does not preclude.

6. The contested decision must be annulled, extent that the vocation of the plaintiff was dismissed by the principal claim (§ 562 Abs. 1 Code of Civil Procedure). The matter is remanded to the Court of Appeal (§ 563 Abs. 1 Set 1 Code of Civil Procedure), make it to the far left open findings

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can meet the actual requirements of the asserted by the plaintiff for damages challenging.

Lower courts:

LG München I, Decision of 30.04.2012 – 28 The 18923/11 -

OLG München, Decision of 28.11.2012 – 20 You 2232/12 -

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