Introduction to the Reform of Partnership Law (MoPeG)
With the entry into force of the Act on the Modernization of Partnership Law (MoPeG) on January 1, 2024, the legislator has set a milestone in German partnership law. The adoption of MoPeG by the Bundestag marks a century reform of partnership law, which brings comprehensive changes to the German Civil Code (BGB) and thus to civil law. The modernization of partnership law entails far-reaching changes for civil law partnerships (GbR) and other forms of partnerships.
The aim of the reform is to strengthen the legal capacity of the GbR and to make the structures and legal relationships within partnerships clearer and more transparent. One reason for this reform was to adapt to the needs of modern corporate structures and to create a uniform framework for various legal forms. The reasons for the modernization were primarily to improve legal certainty and transparency for companies and partners. The entry into force of the new regulations is associated with deadlines that are important for practice and for complying with legal requirements.
Introduction to the Reform of Partnership Law (MoPeG)
A central element of the modernization is the introduction of a partnership register for the GbR. The principles of registration and management of the partnership register provide more legal certainty and transparency. By registering in the partnership register, the GbR is recognized as an independent and legally capable entity in legal transactions. A GbR registered in the partnership register (registered GbR) enjoys special advantages in legal transactions, such as verifiable existence and representative authority. The possibility of registering a GbR in the partnership register facilitates transactions and increases legal certainty for all parties involved. The commercial register serves as a public directory disclosing the existence and representative authorities of various legal forms.
Adjustment of the BGB: New Legal Foundations for Partnerships
The reform affects not only the GbR but also partnerships under commercial law, which receive a new legal classification and extended registration options under MoPeG. The legal basis was specifically adapted through amendments to the BGB, in particular § 705 and § 705 paragraph 2 BGB, to regulate the legal capacity and registration requirements of the GbR. The effects of the reform extend to numerous companies and their structures, especially commercial partnerships such as OHG and KG. The importance of the various legal forms is emphasized by the reform, as well as the role of legal structuring in adapting partnership agreements. Literature and articles provide in-depth information on the legal changes, while the Federal Law Gazette (BGBl) serves as the official source for the statutory amendments.
Civil Law Partnership (GbR): New Rules through MoPeG and Registration in the Partnership Register
The civil law partnership (GbR) forms the basic form of partnerships under German law and is the first choice for many companies, freelancers, and associations of persons. With the modernization of partnership law through the Act on the Modernization of Partnership Law (MoPeG), the GbR has received a new legal status: it is now expressly recognized as a legal entity. This means that the civil law partnership (GbR) can acquire rights, incur liabilities, and participate in legal transactions in its own name.
Registration of the GbR in the Partnership Register: Advantages and Significance
A central element of the reform is the possibility to register the GbR in the newly established partnership register. Registration in the partnership register is voluntary but brings numerous benefits. Thus, the registered civil law partnership (eGbR) is perceived as an independent legal entity in legal transactions, which is particularly important for the representation of the partnership, acquisition of real estate, or participation in other companies. Registration of the GbR in the partnership register ensures greater transparency and legal certainty for both partners and business partners or third parties.
Despite the modernization, it remains possible to establish a GbR as a non-legal entity internal partnership that does not participate in legal transactions. This form is especially suitable for internal relationships, such as working groups or joint medical practices. The modernization of partnership law MoPeG thus creates flexible structures that meet the differing needs of civil law partnerships and align legal reality with practical requirements.
Federal Court of Justice Judgment of December 10, 2024 – Case No. II ZR 37/23
On January 1, 2024, the Act on the Modernization of Partnership Law – abbreviated as MoPeG – came into force. With the entry into force of MoPeG, the new regulations apply from that point on, which has significant impacts on case law and the legal situation of partnerships. This has led to comprehensive reforms in partnership law that also affect case law. In the course of MoPeG, in particular, the Commercial Code (HGB) and the HGB were fundamentally amended concerning registerability, defective resolutions law, and the rights of partners in partnerships. With its judgment of December 10, 2024 (file no. II ZR 37/23), the Federal Court of Justice (BGH) addressed the applicability of the new legal situation, among other things, in cases of actions alleging defective resolutions.
Before MoPeG came into effect, it was established that defective resolutions of partnerships were automatically void. This changed with the introduction of MoPeG. Similar to corporations, a defective resolution is now valid until it is annulled by a successful action alleging a defective resolution, according to the law firm MTR Legal Attorneys, which advises on corporate law among other areas. As the BGH judgment shows, this does not apply to claims that were already pending before MoPeG came into effect on January 1, 2024, which has significant practical implications for defective resolution claims and the affected partnerships.
Defective Resolution Claims Pending Before January 1, 2024
The underlying case concerned an action alleging a defective resolution to declare the invalidity of a partner resolution under the legal situation before January 1, 2024. The plaintiff claimed that a resolution of the partners’ meeting contained substantive and formal defects that rendered it invalid or null and void.
The BGH had to decide whether and to what extent the application of MoPeG must be considered in ongoing proceedings. In the course of the reform of corporate law by MoPeG, extensive changes were introduced to the defective resolution law, particularly affecting the legal framework for partnerships such as the GbR. Notably, § 705 and especially § 705 para. 2 BGB regulate the legal capacity of the GbR and determine under which conditions the partnership can acquire independent rights and incur liabilities. The judges in Karlsruhe explained that the newly regulated defective resolution law under MoPeG does not apply to resolutions adopted before the new regulations took effect. These are not applicable retroactively. In such cases, the defective resolution law valid prior to January 1, 2024, is decisive.
“Old” Law Remains Valid Despite Modernization of Partnership Law
The BGH reasoned that while MoPeG has redesigned the defective resolution law, it does not repeal the old law in its entirety. According to the principle of preserving legal and trust security in the transition from the old to the new law, the transition must be arranged to maintain legal and trust certainty. The principles of transitional provisions must be observed, particularly regarding publicity, powers of representation, and registration obligations. This means that those asserting their rights under the old system must not be disadvantaged. Thus, the Senate protects the continued validity of obligations, legal consequences, and procedural requirements that applied under the old law.
At the same time, the BGH clarifies that MoPeG applies in proceedings concerning resolutions adopted after its entry into force. In such cases, the new regulations on corporate representation, procedural structure, and legal consequences of defective resolutions apply, for example with regard to corrective possibilities, deadlines, the company’s powers of action, and litigation. The reasons for maintaining the old law lie particularly in safeguarding legal certainty and protecting trust in existing corporate structures.
Action Against Individual Partners Possible
Furthermore, the judges in Karlsruhe clarified that not all partners must be included in an action for the nullity of a resolution. Plaintiffs can also target individual partners who, for example, supported the resolution. The role of partners is central here because within the corporate law structure they are involved both in the adoption of resolutions and in litigation, deriving their rights and obligations from the partnership agreement. The BGH also rejects the notion that a legal relationship created by unlawful resolutions can remain permanently protected: mere trust in the existence of such a relationship does not protect against legal correction by a court.
Impact on Limited Partnerships (Co KG)
The limited partnership (Co KG) is a well-established form of partnership, particularly characterized by the combination of fully liable general partners and limited liability limited partners, offering diverse structuring possibilities. With the entry into force of MoPeG, important changes in partnership law also arise for the Co KG.
One of the central innovations concerns the registration of the Co KG in the commercial register. Registration remains mandatory, but the legal provisions have been adapted to current requirements. Particularly noteworthy is that now freelancers have the possibility to establish a limited partnership. This opens new avenues for designing corporate structures and facilitates collaboration in interdisciplinary teams.
Furthermore, the information and control rights of limited partners have been strengthened, leading to increased transparency and legal certainty within the company. The unified company, especially the GmbH & Co. KG, is now explicitly recognized by law and offers companies additional flexibility in choosing their legal form. The modernization of partnership law thus ensures that the Co KG as a partnership remains an attractive and legally secure option for companies and partners in the future.
Transition to the New Law
With the reform of partnership law and the coming into force of the MoPeG, many companies face the task of adapting their existing structures and contracts to the new legal requirements. The transition to the new law requires a careful review of the partnership agreements, especially with regard to registration in the commercial register and the new regulations on the rights and obligations of partners.
It is advisable to check existing partnership agreements for compliance with the new partnership law and to adjust them if necessary. Entries in the commercial register should also be reviewed and updated to ensure that all information complies with current legal requirements. The modernization of partnership law also offers an opportunity to reconsider the corporate structure and adapt it to new possibilities and requirements.
To avoid legal risks and to optimally leverage the advantages of the reform, it is recommended to seek advice from a specialist lawyer for commercial or corporate law. This ensures that the transition to the new law proceeds smoothly and that the company is legally secure for the future.
Review of Partnership Agreements
In practice, the Federal Court of Justice’s ruling means that an objection to a resolution passed before January 1, 2024 must still be assessed according to the legal situation before the MoPeG came into force.
Partnership agreements, internal rules, and future dispute strategies should, however, be aligned with the new regulation. Of particular importance is the amendment of the partnership agreement to comply with the new legal requirements to ensure legal certainty and conformity with the MoPeG. Clauses that clearly regulate procedural paths, define deadlines, or provide remedial mechanisms may be considered, as far as the MoPeG permits.
With its ruling, the Federal Court of Justice has clarified several points. It made it clear that the new regulations of the MoPeG do not apply retroactively to resolutions before January 1, 2024. Here, the “old” law still applies and defective resolutions are invalid from the outset. However, for cases after the MoPeG’s entry into force, the new regulations apply and must be used when examining objections to resolutions. Defective resolutions are initially considered valid until they are annulled by a successful objection. This strengthens the validity of resolutions.
Against this background, it may be advisable to review and, if necessary, adapt existing partnership agreements in relation to the new regulations. Legal structuring plays a central role here, enabling individual solutions and flexible adjustment of the partnership agreement to the new legal framework.
For adapting to the new regulations, it is recommended to consult relevant literature and current articles to obtain well-founded information and practical guidance.
Conclusion and Outlook
Milestone for German Corporate Law
The reform of partnership law through MoPeG represents one of the most significant changes in German corporate law in recent decades. It strengthens the legal capacity of the GbR and ensures clear, modern regulations in dealing with partnerships. The introduction of the commercial register for the GbR brings greater transparency and legal certainty in legal transactions and facilitates companies and partnerships in structuring their legal relationships.
Particularly noteworthy is the introduction of new legal forms that give companies greater flexibility in choosing their legal structure. Freelancers also gain new opportunities through the reform, for example by easier use of corporate forms such as the GmbH & Co. KG. The unified GmbH & Co. KG as well as the OHG receive clearer regulation of their rights and obligations through the legal changes.
Importance of Registration in the Commercial Register
The reform also strengthens the position of partnerships and individual partnerships by adapting their registration and structure to modern requirements. The registered GbR and generally partnerships registered in the commercial register benefit from increased legal certainty and verifiability in legal transactions. It is now possible to register a GbR in the commercial register, which offers significant advantages especially for real estate transactions and representation in business dealings. Registration in the land register and the role of the land register gain importance, as only registered partnerships can be recorded as owners in the land register. The letter “f” plays a role in connection with registration in the commercial register to ensure the legal effect and publicity of the entry.
Recommendations for Action for Companies and Partners
For companies, corporations, and especially for partners of GbRs, it is now essential to familiarize themselves with the new regulations. Partnership agreements should be reviewed and adjusted to current requirements in order to benefit from the advantages of the reform of partnership law and to avoid legal risks. The modernization of partnership law creates a future-proof legal framework that optimally considers the needs of modern companies and corporations in Germany and establishes the basis for legally secure and efficient cooperation.
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