resignation of the CEO Office against individual shareholders sufficient
Niederlegung des Geschäftsführeramtes gegenüber einzelnem Gesellschafter genügt
Die Niederlegung des Geschäftsführeramtes eines GmbH-Geschäftsführers ist wirksam, wenn die Niederlegung gegenüber einem Gesellschafter erklärt wird, auch wenn eine Benachrichtigung der übrigen Gesellschafter unterbleibt (Fortführung von BGHZ 121, 257, 260). (Leitsatz des Bearbeiters)
Urteil v. 17. September 2001 - II ZR 378/99
Tatbestand:
Die Klägerin nimmt die Beklagte aus abgetretenem Recht der M. GmbH auf Zahlung von 247.012,74 DM in Anspruch, die aus der Belastung des bei der Beklagten geführten Girokontos der Zedentin mit zwei am 23. November 1995 über 176.256,74 DM und am 27. November 1995 über 70.756,00 DM ausgestellten Schecks herrühren. Die Parteien streiten darüber, whether HU, which issued the checks for the ceding company, as CEO at that time was their sole representative and thus entitled to issue the checks. According to § 5 clause 2 of the Statute of M represent the company by two directors in common, if the management body is composed of two members. By Theorem 1 of this provision it is only represented by a manager if that is the sole manager. Managers of the M. were great. K. HU and appointed. After the defendant's argument is the managing director K. his post in late summer or early fall of 1994, by notice to the two companions of the ceding company, the A. (later Ac.) resigned GmbH and Me AG (intervener to 1). K. was at that time also the manager of the Ac. been. From the ceding company of K. fax sent on 10 September 1995 shall result that K. was held for the future of the resignation of the CEO Office. This Communication also a resignation lies in the event that one should have been those so far not declared effective. The letter had been sent copies to the witness V., the then Managing Director of Ac. GmbH had been. Also, the Board of Leave to 1 had been informed of the fax. In an with the Board of the intervener to 1 on 19 September 1995 telephone conversation K had brought his continuing desire to resign again expressed. He had stated to have resigned his office manager a year ago, he had to do with the ceding company any more and refuse any further activity from for them. Also constitutes a declaration is contained on the resignation. The Ac. did not need to become informed because it was in fall 1994 and the resignation already been informed. Adds that the legal concept of § 35 paragraph 2 Clause 3 GmbHG also applicable to declarations of intent, which were cast to the entire body of shareholders. The applicant objected to this presentation of the defendant. In particular, they pointed out that on 10 September 1995 the witness V, but the witness Ha. Managing Director of Ac. WAS. Further, the revision in the way of reply, before Gegenrüge that HU had resigned by notice dated 5 May 1995, his office manager.
The action had success in the lower courts. The revision followed the defendant on her dismissal request.
Grounds:
out the review of the defendant to remand the case to the appellate court.
Contrary to the Court of Appeal may, under the current status of procedure not be assumed that the defendant is entitled to the redemption of the two checks not claim reimbursement of expenses under § § 675, 670 BGB. For on the basis of the presentation of the parties of the Court of Appeal's assessment of the facts relied on is not clear that HU as manager of the ceding company at the time of signing the checks are not authorized to represent and had no power so that checks for the M. issue.
first From the applicant does not dispute what the intervener to 1 shows that Ur. K. to the Managing Director of the intervener to 1, S., has expressed that he had resigned his office manager a year ago. This position he reiterated with the further statement that he had with the case - meaning that obviously this is brought to its attention by HU concern is the subject of his answer fax of 10 September 1995 at it - nothing more to do. The office is laid down, he had to do with the firm of M. GmbH anything and refuse any further activity for it off. This affirmation is a confirmation of the resignation of the CEO Office. It is to be regarded as a renewed making the resignation (see § 141 para 1 BGB).
support of his view that this resignation was not so effective because the other partner Ac. had not been announced, the Court of Appeal relied on the Senate decision of 8 February 1993 (BGHZ 121, 257, 260). In that case, the Senate made clear that the effectiveness of the resignation of the CEO duties for which such information as well as the act of appointment as CEO, the revocation of and termination, suspension and termination of the contract and its receipt of the totality of social conditions is not dependent upon, that they shall be sent to all shareholders. He rather considered it sufficient if the resignation stated to one partner and the other only message is sent. He has left open whether the charge of declaration to any shareholder also sufficient if the notice is omitted the remaining shareholders. This controversial issue in the literature (affirmative: Pland, ZHR 133 (1970), p. 327, 359 f.;
Rowe / Koppensteiner GmbHG 3rd edition § 38 para 27; Meyer / Landrut / Müller / Niehus, GmbHG 1987 § 38, para 130; negative: Scholz / UH Schneider, GmbHG 9th Edition § 38 para 91; Schneider / Schneider, GmbH-Rundschau 1980, p. 4, 9 f., doubtfully: Lutter / Hommelhoff GmbHG 15th ed § 38 para 42; open in stone in Hachenburg, GmbHG 8th ed § 38 para 138) answered in the affirmative.
It is a generally accepted principle of law that in the context of the overall representation of a declaration can be released with activity against a total representative (BGHZ 62, 166, 173, RGZ 53, 227, 230 f.). He has been in various statutory provisions - down (see § 171 para 3 CCP - including for the body representation, § 28 para 2 BGB, § 35 para ; GmbHG 2 sentence 3, § 78 paragraph 2 sentence 2 AktG, § 25 para 1 sentence 3 GenG, see also § 125 paragraph 2 sentence 3 HGB). The principle is also applicable to the legal conditions in which the LLC according to § 46 No. 5 GmbHG is represented jointly by its members.
If that is refused on the grounds that the individual shareholder is not entitled to represent the institution (so Scholz / UH Schneider, supra, § 38, para 91) or the shareholders would have no reciprocal power of attorney and had therefore not to receive such declarations set (Lutter / Hommelhoff supra, § 38, para 42), those considerations, the universality of the principle set out are not sufficiently addressed. The appellate court has objected to the legal relationship of the Shareholders concerning the company and among shareholders have lacked the confidence to represent typical relationship of principal to the Agent, by virtue of which is attributed to the principals actions and knowledge of the agent wanted. Thus it fails to recognize, however, that between the company and the shareholders and the shareholders among themselves, there is a relationship of trust and its impact on mutual loyalty, and they obliged, as part of their behavior bear, including its decision to the concerns of their partner and the company be given due consideration.
also practical considerations preclude the application of the principle to the community of interests of contract. Companies with a larger group of shareholders are normally a responsibility to take in the statute and provide the directors with the contracts to be concluded. These considerations lead to the conclusion that Ur. K. has performed in the telephone conversation with the witness S. on 19 September 1995 from his position as managing director in the M GmbH resigned effective.
If HU in November 1995, was Managing Director of M. GmbH, he was able to issue by virtue of his exclusive agency force, the two disputed checks. However, the conclusion is that the revision to the Gegenrüge reply arguments raised by the applicant contrary, HU had by declaration of 5 May 1995, his office manager must set out by notice to the witness G., who was authorized to receive such notice by the intervener. G. The witness had so statement to the former board member of the leave to a HD that they have read and approved it. The intervener to 1 has countered this statement by the applicant.
second The review also complains to rightly, that the Court of Appeal denied by the applicant's claim of intervening to 1, the witness statement by K. had the ceding company and its two Mitgesellschafterinnen, the A. GmbH and leave to 1, resigned from his CEO post when has not been substantiated sufficiently considered. Unless the appeals court asked the defendant, the authorized representatives designate, submit the partner and whether the statements were towards them given under present or they were received between absent, crosses it, the demands on the burden of proof to the defendant.
A party meets its duty if it states facts that are appropriate in connection with a legal rule to let the alleged right appear to have been incurred. The mandatory to substantiate is therefore not only be sufficient if the court judge following the presentation can not determine whether the statutory conditions are met the legal consequences attached to a claim (BGH, ruling of March 16, 1998 - II ZR , 323/96, ZIP 1998, 956, 957).
has since claimed the defendant, Ur. K. had declared the resignation from office over two companions of the ceding company, the result is the legal consequence that the resignation is made effective (references omitted 121, 257, 259 et seq.) That an oral or written statement to a legal person only effective may be that it is delivered to their authorized representative board members or a person authorized by them to be self-evident that to be demonstrated further needs and in the rest of the law shows (see § 78 para 2 sentence 2 AktG, § 35 paragraph 2 sentence 3 GmbHG, § § 167 ff BGB). Since the resignation of the Office of any special conditions form is bound, it can be both orally and in writing that. A more detailed explanation of the form requires it not also.
position can be different then; if the plaintiff has disputed the claim in a certain way. If he runs, for example, all members of the board or manager would have resided during the relevant period of time on the declarant is not known tourist destination, so separating that issue an oral statement, writing is not received, the statement subject to party forced to substantively engaging with it . This may prove to be in similar circumstances, also in view of the credibility of her presentation as required. In the Court of Appeal ruling has not shown that in this case those conditions are met. If necessary, the Court of Appeal make the claim of the intervener to 1 nor the requisite findings.
third The review also criticizes, rightly, that the appellate court, the letter sent to the fax of the witnesses K. M. of 10 September 1995, only a knowledge statement, not a declaration of intention to resign had seen. Ur. K. out in this letter including the following from:
"As you know, I am stepping down as managing director of M. Ltd some time ago and thus have no more powers for the company
Assuming that there is still A. . the second shareholder is, I must ask you, your concern with A. to discuss and obtain the consent of her ...
cc. Mr. VAH GmbH "
It comes once expressed that the witness be managers office in an earlier resigned. This declaration reaffirms, as is clear from his remark that he" therefore no authority over the company " or he must ask the addressee of the letter to discuss his concerns with A. to obtain the requested authorization from her. is contrary to the opinion of the Court of Appeals in this affirmation of the earlier resignation and the outspoken refusal to continue for the M. work actively to both the confirmation the resignation of the CEO Office. This is considered to be re-making (see § 141 para 1 BGB).
A copy of this fax reply has been sent to the witness V.. Whether this or the witness Ha. at that time manager of the Ac. were is disputed between the parties. After the claim of the intervener to 1, it has gained knowledge of the fax. If necessary, the Court of Appeal also take the extent nor the requisite findings.
