The creditors‘ claims for damages against the liquidator of a limited liability company

A creditor whose claims are not satisfied within the liquidation of a limited liability company (GmbH) is entitled to a claim for damages directly against the liquidator of the company - at least if the company has already been deleted from the commercial register. This was recently decided by the Federal Court of Justice (verdict of March 13, 2018, file no. II ZR 158/16).

Background

A limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) was in liquidation proceedings during which the claims of the company’s creditors were to be satisfied. However, in the course of the liquidation proceedings, one of these creditors was passed over by the liquidator of the company. When the company was deleted from the commercial register after completion of the liquidation proceedings, the claims of this creditor still had not been satisfied. Thereupon, the creditor sued the liquidator of the company for damages in the amount of his unsatisfied claims against the (deleted) company. The Federal Court of Justice finally granted him such a claim for damages.

Comment

The verdict of the Federal Court of Justice is good news for all creditors of limited liability companies. If they have claims against the company that are not taken into account in the liquidation proceeding by fault of the liquidator, they can now assert claims directly against the liquidator.

Until now such a direct approach of the liquidator was only possible for creditors of a stock corporation (Aktiengesellschaft, AG). The fact that the Federal Court of Justice now also grants such a possibility to the creditors of limited liability companies makes things a lot easier for them: they do no longer need to carry out a time and cost-intensive supplementary liquidation (Nachtragsliquidation) and then subsequently seize the company’s claim for damages against the liquidator, but can - much easier - take direct action against the liquidator.

Of course, it should be noted that such a direct claim against the liquidator is subject to certain conditions and some questions of detail have not yet been conclusively clarified. In particular, it remains to be seen whether such a direct claim only exists if only one creditor has been bypassed in the liquidation proceedings or whether several bypassed creditors as well can in parallel assert direct claims against the liquidator. It also has to be awaited whether and, if so, under which conditions a direct claim for damages against the liquidator can also be asserted if the company is still registered in the commercial register; this case was particularly not the subject of the Federal Court of Justice’s verdict.