Jump to main content

GmbH Law: No liability of the notary for non-compliance with the internal restrictions on the power of representation

Company law

GmbH Law: No liability of the notary for non-compliance with the internal restrictions on the power of representation

Restrictions of the organ's power of representation in the internal relationship do not affect its effectiveness in the external relationship and are therefore not to be reviewed by the notary, except in exceptional cases. The Court of Appeal fof Koblenz, in its judgement of 03.02.2022 (1 U 651/21), dealt with the question of the notary's liability and denied it. The plaintiff GmbH had a property as its only relevant asset, which was sold by the managing director without obtaining the shareholder's consent. The proceeds from the sale were transferred to a private account of the managing director. In the opinion of the Court of Appeal, no liability arises for the certifying notary, since in the case of a corporate power of representation, inspection of the commercial register is sufficient. An examination of the limitations of the organ's power of representation was not necessary. Despite the reservation of consent pursuant to § 49 (2) GmbHG, the consent of the shareholders is exclusively relevant within the internal relationship between shareholder and managing director. Only in the case of indications of abuse enquiries by the notary are required. Surprisingly, the unusual instruction to transfer the purchase price to the private account in Switzerland was not considered sufficient evidence.