The term “withdrawal” in the legal context
The term withdrawal refers in legal context to the voluntary or forced departure from a legal entity, organization, institution, or legal relationship. It is significant in numerous areas of law, including labor law, association law, corporate law, contract law, and church law. Withdrawal may occur individually, collectively, by unilateral declaration, agreement, or active conduct, and is often subject to certain formal and substantive requirements. The following provides a comprehensive overview of the various legal dimensions of withdrawal.
General definition of withdrawal
Distinguishing the concept
Der withdrawal is differentiated from related terms such as termination, rescission, or revocation. For instance, termination usually aims at ending a continuing obligation and regularly requires notice, whereas withdrawal is often associated with ending membership in corporations or associations. In the case of rescission, a contract is cancelled retroactively, while withdrawal generally has effect for the future.
Forms of withdrawal
Withdrawal may occur voluntarily, on the basis of statutory provisions, or forcibly (e.g., due to exclusion). A distinction must be made between individual withdrawal (for example, individual members leaving an organization) and collective withdrawal (example: mass withdrawal of several parties).
Withdrawal in labor law
Withdrawal by the employee
In labor law, withdrawal generally means the employee’s unilateral statement to end the employment relationship. This takes place in the form of a resignation. However, the term “withdrawal” is particularly used for terminations without adherence to notice periods, for example pursuant to § 626 BGB (extraordinary termination for good cause).
Withdrawal by employees
- Ordinary withdrawal: Within the framework of statutory or contractual notice periods.
- Extraordinary withdrawal: Immediate termination for good cause (e.g., serious breach of contract by the employer).
Withdrawal by the employer
Although often referred to as “termination by the employer”, the term withdrawal is used in specific scenarios, for example when a legal entity withdraws from a corporate group.
Special forms
Employment contracts can also be ended through mutual termination agreements . In some collective agreements and company policies, the term “withdrawal” by the employee is explicitly used—such as in the context of company pension schemes.
Withdrawal in association law
Statutory basis
Pursuant to § 39 Civil Code (BGB), every member of an association has the right to withdraw, unless otherwise provided in the statutes. Withdrawal takes effect through a unilateral declaration of intent that must be received by the association’s board or the body designated by the statutes.
Form and notice periods
The legal effectiveness of the withdrawal is determined by the requirements of the statutes. Written form and specific notice periods (e.g., at the end of the fiscal year, quarterly) are often required. If specific rules are absent, withdrawal is generally possible at any time.
Legal consequences
- Termination of membership
- Termination of all rights and obligations arising from association membership for the future
- Return of any contributions made in accordance with the statutes
Special case: Withdrawal of board members
Withdrawal from the executive board of an association may involve additional formal requirements, such as registering the change in the association register (§ 67 BGB).
Withdrawal in corporate law
Partnerships
In partnerships (e.g., GbR, OHG, KG) a partner can generally terminate their membership in the partnership by withdrawal. The terms are governed by the partnership agreement and statutory requirements, for example §§ 723 ff. BGB for civil law partnerships.
Mandatory and optional provisions
- termination (Standard case): Withdrawal is usually declared by giving notice.
- Exclusion (forced withdrawal): In the case of serious breaches of duty, a partner may also be excluded against their will.
Corporations
In corporate law (e.g., GmbH, AG) the voluntary withdrawal of individual shareholders is generally not easily possible. Here, assignment or redemption of shares are common ways to end shareholder status.
Legal consequences of withdrawal
- Cessation of membership in the company
- Entitlement to compensation in accordance with the articles of association or statutory provisions
- Transfer of liabilities and obligations up until the withdrawal date
Withdrawal in contract law
Withdrawal in the technical sense is understood as a unilateral termination declaration of a continuing obligation, such as lease, rental, or service contracts. In contrast to termination (where a notice period must be observed), the term withdrawal is often used for immediate terminations—usually based on special provisions in the contracts or the existence of an important reason.
Special case: School and training contracts
In school and training relationships, withdrawal is explicitly provided for by law or contract and may require certain formalities (written form, parental consent for minors).
Withdrawal from the church (leaving the church)
Legal basis
Withdrawal from religious communities is possible in accordance with the relevant state (e.g., § 1 Church Withdrawal Act Bavaria) and federal legislation. It usually requires a publicly certified declaration to a state authority (e.g., registry office, local court).
Procedure and formal requirements
- Written declaration in the presence of the declarant
- Identity verification required
- Usually effective upon receipt by the competent authority
- Subject to a fee depending on the federal state
Legal consequences
- Termination of church membership
- Abolition of church tax liability
- Effects on ecclesiastical acts and rights
Other meanings and special cases
Withdrawal from public corporations and associations
In the case of memberships in public law bodies (e.g., chambers of commerce and industry) there are typically clear statutory or bylaw requirements for withdrawal.
Collective withdrawal of member states from international organizations
In international law, withdrawal—also known as exit or withdrawal—describes a state’s departure from an international organization (such as the Brexit). This often requires a formal declaration of withdrawal and observance of deadlines as set forth in the statutes of the relevant organization.
Form and requirements for effectiveness
Written form and delivery
In almost all areas of law, the effectiveness of withdrawal depends on written form —partially with handwritten signature—and receipt by the relevant body.
Special rules
The possibility of an effective withdrawal can be limited by statutes or contracts, but cannot be completely excluded as long as mandatory statutory withdrawal rights exist (e.g., § 39 BGB, association law).
Legal consequences and after-effects of withdrawal
- Termination of membership or the legal relationship
- Elimination of further obligations (contributions and service obligations)
- Continuation of post-contractual duties (e.g., confidentiality, non-compete clauses)
- Settlement of legal consequences in accordance with statutory and contractual provisions
- Possible claim for financial compensation
Literature and further sources
- Civil Code (BGB)
- Commercial Code (HGB)
- Church withdrawal laws of the federal states
- Statutes of associations, articles of association, and federations
- Commentary literature on German civil and labor law
Summary
Withdrawal is a central concept in various legal relationships and regulates the unilateral or by mutual agreement termination of memberships and contracts. The legal basis, formal requirements and consequences vary greatly depending on the context. For the effectiveness and legal consequences of withdrawal, proper attention must always be paid to the applicable statutory and contractual provisions as well as the peculiarities of the respective area of law.
Frequently Asked Questions
Does withdrawal from an association have to be in writing?
According to § 126 BGB, withdrawal from an association is generally not required to be in writing unless the association’s statutes specify a particular form. However, most association statutes in Germany explicitly require a written declaration of withdrawal for legal certainty and to prevent misunderstandings. If the declaration of withdrawal is made orally, by email, or by phone, it is only legally effective if the statutes contain no differing provisions and no implied formal requirements exist. To avoid legal uncertainty, it is recommended to submit the withdrawal in writing—in the original with handwritten signature or with a qualified electronic signature—to a responsible board member. Merely notifying other association members or simply ceasing payment of membership dues is not sufficient to declare a legally effective withdrawal.
What notice periods must be observed when withdrawing from an association?
The notice periods for withdrawal from an association stem primarily from the applicable statutes. As a rule, pursuant to § 39 BGB, withdrawal is possible at any time unless the statutes provide otherwise. However, many association statutes specify deadlines, such as withdrawal only at year-end with a three-month notice period. This is binding and legally effective as long as it is reasonable—unduly long notice periods can be void as unconscionable under § 138 BGB. If not regulated in the statutes, a member may generally withdraw at any time, without notice. It is important that compliance with the notice period is measured by the receipt of the withdrawal declaration, not by the date it was created or sent.
What are the legal consequences of withdrawal for existing contribution obligations?
Upon withdrawal, membership ends and so does the obligation to pay future dues. However, the obligation to pay all dues accrued until the withdrawal’s effectiveness remains. This particularly concerns unpaid membership dues, assessments, or promised special services due before the end of the termination/withdrawal notice period. Dues paid in advance can generally not be reclaimed unless the statutes provide for a refund or the withdrawal is due to a substantial reason for which the association is responsible. Contribution debts from before the withdrawal may be asserted subsequently and, if necessary, enforced in court.
Can a withdrawal be immediate for good cause?
Yes, under § 314 BGB, there is the right in every continuing obligation—which includes association membership—to withdraw immediately for good cause. Good cause exists particularly if, taking all circumstances into account and weighing both parties’ interests, the member cannot reasonably be expected to continue membership until the end of the usual period. Typical examples are significant violations of the statutes by the association, serious breaches of duty towards the departing member, or fundamental changes to the association’s purpose. In these cases, ordinary notice does not need to be observed and membership can be ended immediately by extraordinary termination/withdrawal declaration. The existence of good cause must be demonstrated by the departing member in case of dispute.
Must a reason be given when withdrawing?
Providing reasons for a withdrawal declaration is not legally required, as long as it is an ordinary withdrawal within the prescribed notice periods. Most statutes do not require specific reasons. The situation is different for withdrawal for good cause (“extraordinary withdrawal”), where detailed justification should be provided to clearly demonstrate the requirements for immediate membership termination, especially if it is expected that the association will dispute the existence of good cause. In case of doubt, stating a comprehensible reason also helps to assert and prove one’s legal position in the event of a dispute.
Is it possible to revoke an association withdrawal?
In principle, withdrawal from an association is a declaration of intent that must be received, and pursuant to § 130 BGB, it may be revoked up until it is received by the recipient (usually the association board). Once the withdrawal declaration has been received by the association, revocation is only possible in exceptional cases (e.g., error, fraudulent misrepresentation, duress). A rescission from an effectively declared withdrawal is generally only possible with the express consent of the association board, for example, if a reinstatement is mutually agreed. The re-admission of a former member after withdrawal is governed by the statutes for new admissions.
What effects does withdrawal from an association have on association offices or ongoing obligations?
With resignation from the association, all offices connected with membership also come to an end, unless otherwise stipulated. This also applies to elected positions such as board offices or committee activities: the position is automatically lost upon the end of membership. With regard to ongoing obligations, a distinction must be made: Obligations that arose during membership (such as membership fee claims, participation in certain events, assumption of specific duties) remain enforceable and may be claimed, unless they are inextricably linked to the membership itself. Obligations that are exclusively reserved for members, on the other hand, lapse when the resignation becomes effective.
