GbR-Vertrag: Everything you need to know about the GbR partnership agreement + PDF template

Contents

• What is a GbR-Vertrag?
• The basics in nine questions
• GbR’s objective
• Partners contributions
• Profits & losses distribution
• Partner meetings
• Dismissing a GbR partner
• When should a GbR be dissolved?
• Winding-Up
• Summary
• Want to know more?

GbR-Vertrag: What is a GbR contract?

GbR-Vertrag (GbR contract) is short for Gesellschaftervertrag. This partnership agreement can be entered into with a conventional handshake, after which the legal framework for a GbR becomes applicable. This legal framework can be found in sections 705 to 740 of the BGB (civil code).

For some instances, however, the agreement must be in writing. For example, you’ll need a written GbR contract when a partner brings a piece of property or real estate into the joint enterprise.

If you establish a GbR with one or multiple other founders, it is advisable to enter into a contract, regardless of whether real estate is involved. Should future conflicts, legal action or possible insolvency arise, clear rules for how the GbR should approach such situations should be established.

With these rules, you can define what rights you have and what obligations you must fulfil both within the company and externally. In short, you and your cofounders can make fundamental agreements for managing the GbR and how future events are to be handled, all within the framework of the law.

GbR contracts: The basics in nine questions

To organise your GbR as clearly as possible within this legal framework, you should be able to unambiguously answer the following questions within your GbR contract, leaving as little room for interpretation as possible:

1. What is the objective of your GbR?
2. How much will partners contribute?
3. How will the GbR’s profits and losses be distributed?
4. How will the GbR’s management be organised?
5. Will there be a partners’ meeting, and will it have an agenda?
   1. How often will the partners’ meeting convene?
   2. Who will (or must) invite participants to attend the partners’ meeting?
   3. How will participants be invited (invitation form, notice, pre-meeting briefing, etc.)?
   4. How will GbR partners reach decisions?
   5. When will a simple majority/two-thirds majority/unanimous decision among partners be required for a resolution?
   6. Will votes be weighted according to each partner’s shares?
   7. How should partner absences be handled?
6. May GbR partners withdraw their wages?
   1. How much may a GbR partner privately withdraw?
   2. May partners’ compensation be adjusted according to changes in the GbR’s course of business?
   3. Will partners continue to be compensated if they fall ill?
   4. Will the GbR maintain reserves for turbulent times?
7. May partners transfer their shares to third parties? If so, under what conditions are such transfers possible?
8. May partners terminate a GbR contract? If so, how much notice is required?
9. Under what conditions will the GbR be dissolved?

The following tips, information and possible answers to these nine questions aim to help you successfully manage your GbR with your fellow partners. Legal excerpts are included to aid in your understanding of the subject matter.

What is your GbR’s objective?

You should pay special attention when wording your GbR’s objective or purpose in your GbR contract. There are few reference points within the law to help you here, but a few provisions do refer to the obligations of the GbR’s partners:

Each GbR partner must support the GbR’s purpose and do their part to contribute to its realisation. The objective and purpose must, therefore, be the same for all partners. This is strictly a matter of the GbR’s purpose, not the individual partners’ personal goals. This provision calls for a special duty to refrain from any action that would hinder the realisation of the GbR’s objective.

An example:

Let’s say you want to open a flower shop with your cofounders. You try to describe the GbR’s business purpose as precisely as possible: “The purpose of the GbR is the purchase and sale of all kinds of plants in a shop, especially flowers for every occasion.”

Although this wording concretely describes the purpose, it does restrict the GbR’s development as a business. For instance, if you wanted to rent out plants with a maintenance contract to companies someday, you would have to adjust the GbR contract accordingly.

Tip: If you notice during business plan talks that one or more partners have a more extensive or a more restrictive business objective in mind, do discuss it openly. In the end, all partners must be 100% in agreement with how the GbR’s purpose is worded. Watch out for hidden motives among your cofounders. If you don’t, there are likely to be conflicts in the future.

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How much do the partners contribute?

The law assumes that all partners will contribute the same amount to the GbR, and with many GbRs, that may indeed be the case. Unlike within a corporation, GbR partners do not contribute capital. Usually, partners provide the GbR with expertise, contacts, contracts and jobs, and contributions in kind.

In practice, however, partners often make contributions differing in value. This should be recorded in the GbR contract. For instance, if one partner doesn’t work full time, another brings invaluable material, and a third provides the GbR with his list of customers, each contribution should be specified in the GbR contract. The contributions’ differing values result in a ranking or classification that clarifies what share percentage the partners contribute to the partnership’s assets.

How are the GbR’s profits & losses distributed?

The law provides that all partners are to take part in profits and losses equally unless their GbR contract states otherwise. If the initial contributions differ in value and the partners provide different kinds of services, the GbR contract should allocate profits and losses accordingly. However, doing so doesn’t necessarily protect you from having to make Nachschusspflicht (additional contribution) later. If a partner can’t put forward his share of the loss in the case of insolvency, the remaining partners are responsible for taking over his or her share. Unlike a GmbH, there is no limited liability when it comes to GbRs. As a partner of a GbR, you are personally liable, and your private assets are at risk in their entirety.

This guide explains how you can protect your private assets as a founder of a GbR in the event of a liability.

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How is the GbR’s management organised?

The GbR is to be managed jointly by its partners (BGB, section 709). Therefore, all decisions require the approval of all partners. In practice, however, this is not always advisable or even practical; if all partners are responsible for the GbR’s management, then each partner has the right to object to every single legal transaction.

You can, therefore, convey management powers to one or more partners in your GbR contract. This will exclude the remaining partners from management activities.

It’s easy to see why it is recommended to establish rules for management that meet your needs in order to avoid such complicated situations in the GbR’s day-to-day operations. That’s why it is common practice, for example, to give the managing partners of a GbR autonomy when it comes to certain basic operations, such as in the following example:

1. To ease day-to-day operations, any managing partner may make monetary decisions without further consultation up to a certain amount. Depending on your business model, that amount may vary from €500 to €5,000. When specifying the amount, you should make sure to allow the manager to carry out typical day-to-day operations independently. Such operations include making regular supply orders or acquiring business equipment.
2. Above a certain amount, partner approval is required. In these cases, you should also determine if official approval may be granted with a simple majority or if a unanimous decision is necessary.

In case of a gross breach of duty by a managing partner or an incapacity for proper management, section 712 of the BGB provides that the other partners may dismiss that managing partner. How that decision is reached – whether by a simple majority or a unanimous vote – must be determined by you. The managing partner may also remove himself from management. When doing so, they must take care to not cause damages to the GbR that could otherwise be avoided. They must also ensure the continuation of proper business operations and make sure a transition to another managing partner is organised.

Will there be a partners’ meeting?

The term ‘GbR partner’s meeting’ is not found in the law. The law only requires that certain decisions be reached with a majority or a unanimous vote. When two or three partners run day-to-day operations, it is relatively easy to come to such decisions. If your GbR consists of several partners, one or more of which do not participate in day-to-day operations, you will need to call a partners’ meeting. Each partner, even if they aren’t a managing partner, has the right to inspect the GbR’s accounts and documents if they wish, according to section 716 of the BGB:

Matters concerning money or the GbR’s assets can arise, so it is best to keep non-management partners up to date on the GbR’s performance. The best time and place to do so is a partners’ meeting.

Tip: It would be wise to call a partners’ meeting at least once per year to report on the close of the financial year.

Above all, the following common disputes should be discussed and resolved during a partners’ meeting:

1. Appointing or removing a manager
2. Allocation of profits, especially to reserves
3. Dismissing or suspending a partner
4. Altering the GbR contract
5. Resolving a managing partner’s opposition to a legal transaction carried out by another managing partner

You can and should establish a committee for partners’ meetings and set its agenda in your GbR contract. In doing so, you should define how the process will be organised and determine the following aspects:

1. How often will the partners’ meeting convene?
   It is recommended that a partners’ meeting be convened once per year at the close of the financial year. If a partner expresses a desire for a specific official inspection or raises an objection to a legal transaction, an extra partners’ meeting should be convened. If one of the five issues listed above arises, an extra GbR partners’ meeting should be convened as well.
2. Who will (or must) invite participants to the GbR partners’ meeting?
   The GbR’s managing partner usually invites participants to the partners’ meetings. You may also choose to grant all partners the right to request a partner’s meeting (we’ll shorten it to ‘PM’ for the rest of this guide) in the GbR contract. A PM could be convened as requested, for example, when more than half of all partners sign such a request.
3. How will participants be invited (invitation form, notice, pre-meeting briefing, etc.)?
   To ensure that all partners can effectively exercise their right to control (or inspect), management should invite participants two to four weeks before the PM. An ideal invitation would include an agenda and all documents necessary for resolving the matter at hand. The GbR contract should also specify what form the invitations should take. Invitations are usually written and sent by mail or handed out personally.
4. How will GbR partners reach decisions?
   You can use your GbR contract to determine what type of majority is needed to reach decisions, and you can do so with near-complete freedom. You can assign different majority requirements to different cases: unanimity, a two-thirds majority, or a weighted vote according to partner shares in profits and losses. Experts recommend requiring a unanimous vote for all personnel decisions, except for cases in which a partner is to be dismissed. In such cases, unanimity would mean approval from all remaining partners – the partner to be dismissed technically still has the right to a vote, but he or she is unlikely to vote for their own dismissal.
5. When will a simple majority/two-thirds majority/unanimous decision among partners be required for a resolution?
   Your GbR contract should require unanimity, or at least a two-thirds majority, to approve any alterations made to it. Perhaps the most common dispute concerns the GbR’s stated purpose or objective. Therefore, it is recommended that the contract specify that a simple majority is not sufficient to change the GbR’s purpose. Other decisions regarding the ordinary course of business, however, should be able to be reached with a simple majority.
6. How should the votes of partners who are absent from the partners’ meeting be handled?
   If a partner is unable to participate in a PM, they cannot exercise their right to vote. However, the GbR contract can make exceptions. For example, the contract can allow the partner to submit their vote in writing or transfer their voting right to another partner. In any case, the GbR management must ensure that every partner is informed of the meeting and its appointed time in a timely manner.
7. Can I enable the GbR to reach decisions by a written circulation procedure in its contract?
   A written circulation procedure via email is always recommended when quick decisions outside of a PM must be made.

Tip: In general, you can organise your GbR’s decision-making procedures freely. Unlike corporations, you can opt to make it possible to reach decisions verbally. However, the more partners participating, the higher the risk that fractions pursuing different interests could develop within the group.

Therefore, it is advisable to make decisions in writing. Ideally, minutes should be taken at each partner’s meeting and sent to each partner afterwards.

Set a deadline by which all partners must raise any objections. Once the deadline has passed, the minutes should be considered approved, and management can begin to implement any decisions made. Such an approach creates room for the GbR’s managing partners to act effectively and legally.

May GbR partners withdraw their wages?

No – the law does not provide for wages for partners. You may pay managing partners management salaries in an amount appropriate for the GbR’s respective industry. These payments count as profit-reducing operating expenses. Partners are generally compensated with their profit shares only, which are normally paid out after the close of the financial year.

You can utilise private withdrawals for for-profit share payments made during/before the end of the year. This means you can specify how you and the other partners can receive salary-like compensation within your GbR contract.

1. How much may a GbR partner privately withdraw?
   You and the other GbR partners may, in agreement, freely determine how much a partner may privately withdraw. However, it is advisable to include a provision in the GbR contract that guarantees sufficient liquidity for the partnership. One practical solution would be to draw up monthly accounts. Depending on their profit shares, each partner may privately withdraw 50% of those shares, for example. Of course, these private withdrawals would have to be documented and recorded in a so-called Privatkonto (private account) for bookkeeping purposes.A private account is a subaccount of a partner’s equity. Private withdrawals also include the private use or consumption of products or the private usage of business equipment.Private withdrawals of profit shares in the form of cash payments or transfers are exempt from VAT. Still, VAT is charged to partners’ private usage of business equipment and private consumption of self-manufactured products.
2. May private withdrawal amounts be adjusted according to changes in the GbR’s course of business?
   With your partners’ approval, you may change the amount partners may privately withdraw from their profit shares at any time. Reducing that amount is always recommended when the liquidity of the GbR is at risk.
3. Will partners continue to be compensated if they fall ill?
   Private withdrawals within the GbR are profit shares you cannot withhold from a partner who falls ill. When it comes to managing partners receiving management salaries, the legal regulations governing sick pay apply. The GbR contract can include provisions for cases in which a partner is permanently unable to fulfil his or her performance responsibilities. If a partner will be unable to contribute for more than a quarter of a year, for example, you can determine that his profit shares for that year may be lowered in proportion to his reduced contribution.
4. Will the GbR maintain reserves for turbulent times?
   As a cautious entrepreneur, you should always keep reserves. These usually consist of revenues and profit shares that aren’t withdrawn. It is recommended to keep reserves sufficient enough to be able to cover all liabilities at all times and continue to meet payment obligations even when business is slow.

May partners transfer their shares to third parties?

No. Section 717 of the BGB states that “the claims to which the partners are entitled against each other under the partnership relationship are not transferable.” Therefore, it is forbidden for partners to sell their partnership shares. If a partner wishes to ‘retire’ from the partnership, he or she must give proper notice.

May a partner terminate a GbR contract?

Contract termination is allowed. The law includes provisions for various cases in sections 723 to 725 of the BGB and regulates the minimum requirements.

This section fundamentally protects the partnership and its continuation in cases where a partner exits the partnership.
But what are some examples of ‘compelling reasons’, and what does ‘premature’ mean when it comes to retiring from a GbR?

What is considered to be a ‘premature’ retirement from a GbR?

The term ‘premature’ has no clear legal definition, but a rough understanding can be derived from other laws. A bailiff, for example, may not execute a seizure at the weekend or at night. That would be considered ‘premature’. An employer may not dismiss an employee while that employee is on holiday. This is also considered a premature dismissal.

The prohibition of premature GbR terminations arises from the relationship of trust between partners upon which the GbR contract is based. This obligation toward fulfilling the GbR’s common objective also means protecting the GbR from damages. If a partner retires from the GbR on short notice and in the knowledge that he or she is putting a project or the entire GbR at risk, this is considered to be a premature termination.

Tip: To minimise the risk of a partner’s short-term termination, you can include a notice period in your GbR contract. For example, you can require that a partner can only exit the partnership if he provides notice at least six months before the close of the financial year. This gives the remaining partners enough time to prepare for that partner’s retirement.

Do take into consideration, however, that the retiring partner can demand the return of their profit shares and the funds they contributed. If the partnership does not have sufficient liquidity, the remaining partners must provide the funds themselves, and to do so, they need enough time. Below, you’ll read how to properly proceed with such an exit within the ‘winding-up’ process.

A ‘compelling reason’ for terminating a GbR

A GbR founded for a certain purpose can only be terminated if another partner breaches his or her duty. Such a breach can be intentional or the result of gross negligence.

An example:

Let’s say you’re organising a festival, and you establish a GbR with three other partners for that purpose. You have all agreed to generate profit through sponsors, ticket sales and rent from food and drink stands. You would be unable to exit the partnership a quarter of a year before the festival is to take place unless you have a compelling reason for doing so. The following examples could be grounds for leaving the partnership:

1. Intentional: You realise that one of your partners is embezzling money from sponsors. In this case, you may terminate the partnership, as the matter is an intentional crime and violates the trust that the cooperation is built upon.
2. Negligent: A partner was supposed to acquire event insurance for the festival but forgot to do so. It’s impossible to get coverage on such short notice, and the risks go beyond the agreed-upon business model. In this case, you may also leave the partnership.

Termination in such cases would free you from the risky situation your GbR finds itself in due to the negligent or intentionally damaging behaviour of a partner.

Dismissing a GbR partner

In general, you are legally allowed to dismiss a partner for failing to fulfil their obligations. Such dismissal is regulated in section 737 of the BGB, and the most important reason for dismissal can be found in section 723. If you can provide enough evidence, you should also report the offence in the case of an intentional crime.

When should a GbR be dissolved?

Sections 726 to 728 provide three causes that could lead to the dissolution of a GbR:

• Dissolution due to achievement or impossibility of its object (§ 726 BGB)
• Dissolution due to the death of a partner (§ 727 BGB)
• Dissolution due to insolvency of the partnership or one of its partners (§ 728 BGB)

The first case is self-explanatory. Cases of death or insolvency, on the other hand, are more complex.

Dissolution due to the death of a partner

Your GbR contract must contain a provision that protects the GbR in such a case. It’s worth taking a look at the text of the law here:

If a partner dies, his or her legal successors must immediately inform the remaining partners. The remaining partners will then continue the partnership’s course of business (with those successors if necessary). They are obligated to find a solution in such a manner.

Tip: Your GbR contract can include a provision that specifies how the GbR is to handle the death of a partner, including how the remaining partners are to proceed with the deceased partner’s partnership shares. It’s generally best to avoid a situation in which a complete stranger can ‘vote’ on behalf of the deceased partner.

Contracts usually contain a provision that allows the deceased partner’s partnership shares and responsibilities to be taken over by the remaining partners. The successors would then only receive the share payment. In such a case, you must calculate the stand of the deceased’s profit shares and contributions in kind as of the day of their death and pay/give that amount back to the deceased partner’s successors. Here, the legal regulations concerning the ‘winding-up’ of a partnership apply. This will be clarified shortly.

Dissolution due to insolvency

If the partnership becomes insolvent, it must file as such with its district court. Once the insolvency proceedings have begun, a court-appointed insolvency administrator will usually take over the business. If there is still a chance for the GbR to carry on, you can continue to work according to an insolvency plan.

If only one partner becomes insolvent, however, the GbR can be dissolved. The remaining partners are then obligated to temporarily take over the responsibilities of the insolvent partner, and the partnership is considered to still be valid. When the ‘winding-up’ takes place, it is crucial that the insolvent partner’s assets are removed from the GbR, with the goal of letting the GbR continue. The remaining partners must either pay out the insolvent partner with the GbR’s reserves or their own funds. Afterwards, the GbR may continue to operate.

Winding-Up: Continuation after termination or dissolution

A termination or dismissal of a partner or a dissolution of the GbR does not necessarily mean that the GbR must cease its operations. If a partner leaves or is dismissed, the remaining partners will usually do everything they can to allow the GbR to continue. To do so, the partnership has to organise a so-called ‘winding-up’ (‘Auseinandersetzung’), during which all of the partnership’s funds, as well as assets and liabilities, are calculated as of a certain date. The calculated profits or losses will determine whether the partners will receive a profit share or if they will have to pay additional capital. ‘Windings-up’ are regulated in sections 730 to 740 of the BGB.

If the GbR is to be dissolved for good, all ongoing legal transactions must be concluded, which could take quite a while. The law refers to these transactions as “schwebende Geschäfte” (pending transactions). It would not hurt to take a look at the text of the law in this case either:

During dissolution and winding-up, it is critical that former partners are stripped of their rights and powers within the GbR. All partners then carry out the GbR’s management together.

When the partnership’s debts have been paid and all pending transactions are concluded, the partners may reimburse their capital contributions (§ 733 BGB). The repayment amounts must equal the amount that was initially contributed. If a surplus remains after repayment, the partners can divide the remaining profit among themselves proportionately to their shares (§ 734 BGB). If losses remain, however, such as liabilities towards third parties, all partners are obligated to pay in their shares of the losses (subsequent contributions, § 735 BGB).

GbR Contracts: Conclusion

A GbR contract is a powerful tool for securing your partnership’s long-term success. When creating your GbR contract, take advantage of the organisational freedom you have beyond the BGB’s minimum requirements. The contract will establish rules that facilitate an orderly decision-making process for the partnership.

When drafting your GbR contract, it is important to discuss every sentence with your partners. Discussing the contract will help you continue and consolidate your discussions concerning GbR’s business plan and finances.

The contract will also regulate sensible task assignments and define the partners’ internal relationships. You can determine how the GbR’s management will be defined and what powers you will grant it. The contract will document the GbR partners’ contributions and assign them value. It will determine profit and loss shares based on what services the partners offer and which responsibilities they will take on when it comes to establishing the GbR and its day-to-day operations.

Even if you feel you have a great GbR contract when all is said and done, you should still have a lawyer assess it. There’s one thing you need to understand above all: You are free to determine many aspects for which there are no legal provisions. Still, there are some situations that are strictly regulated – and these regulations can’t be neglected. To stay on the safe side, have a lawyer make sure you don’t make any serious mistakes.

Want to know more about the GbR?

The basics:

• What is the GbR?
• The GbR for Freiberufler
• The pros and cons

How things work:

• How to protect your private assets
• The unwanted GbR
• How to start a GbR

Master list:

• The list of all Company Formation articles