# Resolution Determination under the New HGB Rules on Defective Resolutions > Resolution determination governs provisional binding effect, action type and deadlines for commercial partnerships under §§ 110 et seq. HGB. Source: https://www.mtrlegal.com/en/resolution-determination-new-hgb-defective-resolutions-law/ · Language: en · Updated: 2026-10-22 --- ## Resolution Determination as the Key to the New Law on Defective Resolutions With the Act on the Modernisation of Partnership Law, the legislature has for the first time created a dedicated [law on defective resolutions in §§ 110 et seq. HGB (Handelsgesetzbuch, German Commercial Code)](https://www.mtrlegal.com/beschlussmaengelklage-vor-und-nach-dem-mopeg/) for commercial partnerships. This new system distinguishes between voidable and void shareholder resolutions. It has replaced the former model, which was essentially geared toward declaratory relief and under which defects in resolutions could generally lead to the nullity of the resolution concerned. For the practical application of [§§ 110 et seq. HGB](https://www.gesetze-im-internet.de/hgb/__110.html), resolution determination is of considerable importance. Only through it does an adopted resolution acquire provisional binding effect. At the same time, it determines whether a defective resolution may be challenged by an action for rescission or an action for a declaration of nullity under §§ 110 et seq. HGB, or by a [general declaratory action under § 256 ZPO (Zivilprozessordnung, German Code of Civil Procedure)](https://www.mtrlegal.com/wiki/feststellungsklage/). Despite this central function, the Handelsgesetzbuch [contains no express provision](https://www.bundestag.de/resource/blob/835882/5a06ff3c32534573a763bf807dfae8a6/stellungnahme-otte.pdf) as to when and under what conditions a resolution is deemed to have been determined. Unlike in stock corporation law, in particular in the case of § 130 AktG (Aktiengesetz, German Stock Corporation Act), there is no statutory framework for the act of determination. The explanatory memorandum to the MoPeG (Gesetz zur Modernisierung des Personengesellschaftsrechts, Act on the Modernisation of Partnership Law) assumes that the details of resolution determination need not be regulated in an abstract and general manner, but may be left to the courts. This restraint on the part of the legislature leads to uncertainty. This concerns in particular the question of who is entitled to determine a resolution, what form the determination must take, and when there is a sufficient basis for the provisional binding effect of a resolution. ## Guidance from GmbH Law and Its Limits ### Absence of Statutory Regulation Also for the GmbH The starting point is similar to that under GmbH law. There, too, there is no express statutory provision on resolution determination. The law on defective resolutions for the GmbH (Gesellschaft mit beschränkter Haftung, German limited liability company) has so far been shaped essentially by case law and legal literature and, in parts, modelled on the stock corporation law system of rescission. According to the prevailing view, the application of this rescission model in GmbH law also presupposes that a resolution has been determined. Against this background, it is natural to draw on the principles developed in GmbH law for commercial partnerships as well. The explanatory memorandum to the MoPeG follows this approach. It states that the modalities of resolution determination—as in GmbH law—are to be clarified by the courts. ### Interrelationship Between Commercial Partnerships and the GmbH The new law on defective resolutions for commercial partnerships cannot be viewed in isolation. Discussions concerning GmbH law played a significant role in its design. Conversely, the explanatory memorandum assumes that §§ 110 et seq. HGB may have repercussions for GmbH law. This interrelationship also concerns resolution determination. Uncertainties that exist in GmbH law regarding the proper determination of resolutions may therefore be transferred to the new law governing commercial partnerships. A reform of the GmbH law on defective resolutions is not provided for under the coalition agreement for the 21st legislative period. Further development is therefore likely to continue to be shaped substantially by case law. ## Concept and Significance of Resolution Determination ### Formal Fixing of the Resolution Result Resolution determination is generally understood as the final announcement that a resolution with a specific content has been adopted. It concludes the voting procedure and establishes the legal result. Resolution determination is not limited to the mere arithmetical calculation of votes. Rather, it contains a statement as to which resolution is to be deemed legally adopted on the basis of the voting result. Especially where relations among shareholders are contentious, resolution determination is intended to create clarity. It is intended to avoid uncertainty as to whether a resolution has been adopted and what its content is. ### Provisional Binding Effect and Legal Protection Outside stock corporation law, resolution determination is, according to the prevailing view, not understood as a prerequisite for the effective adoption of a resolution. Under the new law governing commercial partnerships, however, it has a special steering function. It determines which legal remedy is available: - action for rescission under §§ 110 et seq. HGB in the case of voidable determined resolutions, - action for a declaration of nullity under §§ 110 et seq. HGB in the case of void determined resolutions, - general declaratory action under § 256 ZPO if the new law on defective resolutions does not apply. Resolution determination is therefore not only significant from a procedural perspective. It also influences whether, and within which time limits, defects in resolutions may be asserted. ## Central Disputed Issues from GmbH Law ### Competence for Resolution Determination In GmbH law, two questions in particular have emerged: Who may determine the result of a resolution, and what requirements apply to the act of determination? It is recognised that a chair of the meeting provided for in the articles of association may determine resolutions. This applies, for example, where the articles of association designate a specific person or contain a selection procedure. It is disputed whether and under what conditions a chair of the meeting may be appointed ad hoc by the shareholders’ meeting. According to the prevailing view, a simple majority resolution is generally sufficient for this, provided that the law or the articles of association do not impose stricter requirements. In some cases, unanimity is required instead. The prevailing view generally links the conduct of the meeting with the authority to determine the result of the resolution. According to another view, this competence should belong only to a chair of the meeting designated in the articles of association or expressly authorised unanimously. For the most part, a de facto chair of the meeting acting with the consent of all shareholders is also recognised as having competence to determine resolutions. ### Determination by the Shareholders’ Meeting If no chair of the meeting has been appointed, the view taken in GmbH law is that determination by the shareholders’ meeting itself may also be considered. It is the company’s highest decision-making body. Here, too, the question arises whether a majority resolution is sufficient or whether unanimity is required. In the law governing commercial partnerships, the answer also depends on whether the unanimity principle under § 109 Abs. 3 HGB applies or whether the partnership agreement deviates from it. ### Content and Form of the Act of Determination In principle, resolution determination requires a formal fixing of the legal resolution result. It is intended to eliminate doubts as to the adoption and content of the resolution. In GmbH law, the prevailing view now is that an expressly formal declaration is not strictly required. A conclusive resolution determination may also suffice if it provides sufficient certainty as to the adoption and content of the resolution. In some cases, an externally recognisable consensus among the shareholders regarding the voting result is considered sufficient. According to the prevailing view, a resolution result may be deemed to have been determined tacitly in particular where, at the end of the meeting, the shareholders unanimously assume a specific result and factual or legal doubts arise only later. By contrast, the mere subsequent inclusion of the resolution result in minutes after the conclusion of the meeting is not deemed sufficient. The position may be different if properly drawn-up minutes are received by the shareholders in accordance with § 130 BGB (Bürgerliches Gesetzbuch, German Civil Code) or are signed by all shareholders present. ## Requirements under the Law Governing Commercial Partnerships ### Same Function as in GmbH Law The same fundamental questions arise under the law governing commercial partnerships. Resolution determination leads to the provisional binding effect of the shareholder resolution and determines the admissible type of action. The differences between an action for rescission and an action for a declaration of nullity on the one hand, and a general declaratory action on the other, are considerable. The action for rescission is subject to a time limit. Under § 112 HGB, it must be brought within three months of notification of the resolution; the partnership agreement may shorten the period to at least one month. By contrast, the general declaratory action under § 256 ZPO is, in principle, not subject to a comparable time limit. Although bringing such an action may in individual cases be limited by forfeiture in conjunction with the corporate duty of loyalty, the requirements for forfeiture depend on the individual case and do not provide the same legal certainty as a clearly defined rescission period. ### Significance for Dissenting Shareholders For a shareholder who does not agree with the resolution result, the determination has considerable consequences. The shareholder must initially treat the resolution as provisionally binding. At the same time, the shareholder bears the burden of taking action against the resolution within the applicable system of legal protection. This also entails cost risks in proceedings concerning defective resolutions. It is therefore all the more important to have clarity as to whether a resolution determination exists and which form of legal protection is available. Disputes concerning defective resolutions in commercial partnerships are commercial matters. Upon application, they must therefore be heard before the Kammer für Handelssachen (Chamber for Commercial Matters). This also shows that procedural classification is not merely a theoretical question. ### Subject Matter of Actions for Rescission and for a Declaration of Nullity Legal literature takes the view that actions for rescission and actions for a declaration of nullity under §§ 110 et seq. HGB have the same subject matter. Accordingly, the claimant need not finally commit, before expiry of the three-month period under § 112 Abs. 1 HGB, to which type of action is being brought. This classification does not, however, change the fact that the prior question of resolution determination decides whether the system of §§ 110 et seq. HGB applies at all or whether recourse must be had to the general declaratory action. ## Competence to Determine Resolutions ### Chair of the Meeting as the Primary Point of Reference In line with the prevailing view in GmbH law, it must also be assumed for commercial partnerships that the function of the chair of the meeting generally includes competence to determine resolutions. This applies to chairs of the meeting designated in the partnership agreement as well as to those appointed with the consent of all shareholders or by majority resolution. By agreeing on a chair for the meeting, the shareholders generally express that the meeting is to proceed in an orderly manner and that the resolution situation is to be recorded unequivocally. It would be unconvincing to assign to the chair of the meeting the organisation of the meeting, the conduct of the vote and the determination of the numerical result, but to deny that chair the final determination of the resolution result. It must also be possible to appoint a chair of the meeting ad hoc. This may become relevant, for example, if the chair provided for in the partnership agreement is unavailable or if certain agenda items require separate chairing. ### Majority or Unanimity in the Appointment If the majority principle is agreed in the partnership agreement of a commercial partnership, a chair of the meeting may generally be appointed by majority resolution. If there is no such deviation, § 109 Abs. 3 HGB applies, meaning that unanimity is required. It is argued against appointment by majority resolution that a majority shareholder could thereby not only bring about resolutions largely alone, but could also have the resolution result determined by the chair of the meeting selected by that shareholder. This would deprive minority shareholders of the general declaratory action, which is less strictly tied to time limits. On balance, these concerns are not persuasive. Especially in contentious shareholder relations, it cannot be expected that all participants will agree on a chair of the meeting. If determination competence were recognised only for chairs of the meeting legitimised unanimously, the statutory rescission model could frequently be displaced in conflict situations. That would run counter to the legislature’s fundamental decision to create, with §§ 110 et seq. HGB, a statutory default regime for defective resolutions modelled on stock corporation law. ### Determination by the Shareholders’ Meeting If no chair of the meeting has been appointed, the shareholders’ meeting itself must also be authorised to determine resolutions. Otherwise, there would be a risk that the applicability of the new law on defective resolutions would fail simply because there is no chair of the meeting. Determination by the shareholders’ meeting may be particularly significant in smaller commercial partnerships. In such entities, formalised meeting structures are often less pronounced. ## Requirements for the Act of Determination ### Recognisable Declaration as the Basis for Provisional Binding Effect Resolution determination requires an act that is externally recognisable. Reliance on the provisional validity of the resolution can attach to such an act. This requirement follows from the function of resolution determination. It is intended to eliminate doubts regarding the adoption and content of the resolution. An act of determination that is not sufficiently recognisable can fulfil this function only to a limited extent. A merely tacit resolution determination offers hardly any independent added value compared with the actual adoption of the resolution. In the event of a dispute, resolutions determined by conclusive conduct and resolutions not determined at all can be difficult to distinguish. ### Limits of Conclusive Determination An understanding among the shareholders that a particular voting result has been achieved may indeed be a factual indication. However, it does not automatically replace an independent determination of the legal resolution result. Resolution determination is intended precisely to accomplish more than mere internal decision-making by vote. It is intended to establish, in an externally recognisable manner, a resolution situation that is to be recognised at least provisionally. In addition, tacit agreement is difficult to prove in the event of a dispute. A shareholder who only later develops doubts as to the legality of a resolution will then often be unable to assess with certainty whether a resolution determination has taken place and which type of action is admissible. ### Minutes and Notarial Recording In addition to the classic determination by a chair of the meeting, functionally equivalent forms may be considered. In particular, inclusion of the adopted resolution in minutes of the meeting may suffice if those minutes are transmitted to the shareholders or signed by the shareholders present. Such documentation fixes the content of the resolution and can eliminate uncertainty regarding the resolution result. At the same time, it takes account of the fact that commercial partnerships are often organised in a less formalised manner than stock corporations. Notarial recording of the adoption of the resolution may also be equivalent to a formal resolution determination. However, this requires that the notary make and record the notary’s own findings regarding the resolution result. Mere notarial documentation of the course of the vote is not sufficient for this purpose. ## Current Case Law on the Provisional Effect of Determined Resolutions ### Decisions of the OLG München on the GmbH The significance of resolution determination is also reflected in more recent decisions on GmbH law. By order of 23 July 2026 – 34 Wx 168/26 e, the OLG München (Oberlandesgericht München, Munich Higher Regional Court) held that a dismissal resolution determined by the chair of the meeting may be binding on the registration court in register proceedings, provided there is no obvious nullity or arbitrariness. This also applies where the resolution is merely voidable. According to the headnotes of this decision, entry in the register of the departure of a GmbH managing director dismissed for cause generally does not require proof that the cause in fact exists. In addition, an interim order may not be aimed at inducing the applicant to withdraw the registration application. By order of 10 August 2026 – 7 W 1058/26 e, the OLG München further held that a dismissal resolution determined by the duly appointed chair of the meeting and merely voidable is provisionally effective until it is declared null and void with final and binding effect. It may follow from this that the dismissed managing director no longer has authority to represent the company in proceedings. These decisions concern GmbH law. However, they illustrate the practical reach that determination of a resolution result may have. ### BGH on the Previous Legal Position for Partnerships By judgment of 10 December 2024 – II ZR 37/23, the Bundesgerichtshof (BGH, Federal Court of Justice) ruled on an action for a declaration of the invalidity of a shareholder resolution under the law on defective resolutions for partnerships applicable until 31 December 2023. According to that decision, there was no necessary joinder of parties on either the claimant or the defendant side. In the same decision, the Bundesgerichtshof expressly addresses § 137 sentence 1 MoPeG as well as §§ 110 et seq. HGB and § 110 Abs. 2 HGB. It also transfers its case law to rescission periods agreed in the partnership agreement for the KG (Kommanditgesellschaft, German limited partnership). Although the decision therefore concerns the former legal position, it also refers to the new statutory system. ### International Aspects in Disputes Concerning Defective Resolutions Cross-border situations may also become significant in the context of defects in resolutions. On 30 June 2026 – 6 Ob 116/25i, the Oberste Gerichtshof Österreichs (Austrian Supreme Court) ruled on the company statute in a dispute concerning defective resolutions of a GmbH & Co. KG established in Austria and affirmed the jurisdiction of the courts at the registered seat. The decision concerns Austrian procedural and company law. Nevertheless, it shows that disputes concerning defective resolutions may also raise questions of jurisdiction and of the applicable company statute in internationally structured companies. ## Need for Regulation of Resolution Determination ### Minimum Degree of Normative Contouring The questions outlined above show that, despite its various manifestations, resolution determination is amenable to basic statutory regulation. Precisely because it decides whether §§ 110 et seq. HGB apply, there is a need for procedural clarity. The current legal position may lead to disputes being conducted not only over the alleged defect in the resolution. Rather, it may already be disputed at a preliminary stage whether a resolution determination has taken place at all. This is at odds with the objective of the MoPeG to create greater legal certainty regarding the existence of shareholder resolutions that have been adopted. Already during the legislative process for the MoPeG, it was proposed to extend the three-month period to cases in which the resolution result had not been determined with provisional binding effect by a chair of the meeting. A § 115a HGB-E (draft German Commercial Code provision) had been proposed for this purpose. The legislature did not adopt this approach. ### Default Rule as a Balancing Mechanism The variety of possible forms of determination does not necessarily argue against statutory regulation. Rather, it may support a default-law design. Such a provision could, on the one hand, take account of the particularities of commercial partnerships. On the other hand, it could establish minimum requirements that ensure legal certainty and evidentiary reliability. Key elements of such statutory contouring would be: - express recognition of the chair of the meeting’s competence to make the determination, - subsidiary determination competence of the shareholders’ meeting, - requirement of an externally recognisable and unequivocal notification of the resolution result, - recognition of suitable minutes as an equivalent form of determination, - rejection of a merely tacit understanding as a generally sufficient basis. Further statutory requirements regarding the appointment of the chair of the meeting would not be strictly necessary. These questions may arise from § 109 Abs. 3 HGB or from the partnership agreement. ## A Possible Regulatory Approach in § 110 HGB ### Anchoring in the Appropriate Statutory Provision Since resolution determination forms the point of reference for the legal consequences of the law on defective resolutions, regulation in § 110 HGB is an obvious solution. § 110 HGB is listed in legal databases in the version of 4 February 2026; the Handelsgesetzbuch was last amended by Article 4 of the Act of 4 February 2026. One possible approach would be to supplement § 110 HGB so that expressly only determined resolutions fall under the rescission and nullity regime. At the same time, it could be regulated how the determination is to be made. In particular, a provision would be conceivable under which a resolution is determined with the result communicated as the resolution result by the chair of the meeting or—if no such chair has been appointed—by the shareholders’ meeting following the vote. In addition, inclusion in a written record could suffice if it is signed by the shareholders present or transmitted to the shareholders after the meeting. ### No Complete Formalisation Required There is not necessarily a need for more extensive regulation. Commercial partnerships generally have a lower degree of formalisation than stock corporations. For this reason, a comprehensive statutory regime in detail does not appear necessary. The details may continue to be developed by case law. What would be necessary above all is a minimum degree of clarity as to when a resolution is deemed to have been determined and who is authorised to do so. ## Conclusion and Outlook With §§ 110 et seq. HGB, the legislature has created an autonomous law on defective resolutions for commercial partnerships. The objective is increased legal certainty with regard to the existence of adopted shareholder resolutions. Resolution determination occupies a central position in this context. It establishes the provisional binding effect of the resolution and determines whether the new rescission and nullity model or the general declaratory action is decisive. Precisely because of this significance, it appears problematic to leave the requirements for resolution determination entirely unregulated. Uncertainties regarding determination can substantially impair the function of the new law on defective resolutions. A statutory minimum rule could help stabilise the distinction between the various forms of legal protection. At the same time, it would have to remain flexible enough to accommodate the less formalised character of many commercial partnerships. For companies, investors and shareholders, questions of resolution determination can have considerable effects on organ status, the exercise of voting rights, register proceedings and litigation concerning defective resolutions. 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