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On the agreement of rights of recourse in the insolvency of a GmbH co-partner

03/01/2021 - Reading time: 10 minutes

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Rights of purchase under articles of association will generally also apply in the event of a shareholder’s insolvency.

From a creditor protection perspective, a shareholder’s death or voluntary withdrawal on the one hand and enforcement or insolvency on the other hand must be treated the same, as they both represent cases giving rise to rights of purchase. Furthermore, limiting the settlement amount to below the relevant share’s fair market value (estimated amount) in the event of enforcement or the shareholder’s insolvency is only admissible if such limitation does not apply exclusively to the aforementioned cases but equally to any type of the shareholder’s withdrawal, be it voluntary (in particular, share transfer) or involuntary.

For further information, see the comments of fwp attorney Roswitha Seekirchner on the relevant decision handed down by the Austrian Supreme Court published in the Bankarchiv - Zeitschrift für das gesamte Bank- und Börsenwesen magazine in February 2021 (p. 107 (110 et seq.)).
 

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