Karlsruhe Higher Regional Court, 26 October 2010, Ref.: 8 U 115/09
A practically very important and at the same time very complicated issue is the subsequent liability of architects who have left a partnership of architects. Communities of architects are generally organised as partnerships under civil law and are therefore subject to the provisions of Sections 705 et seq. BGB.
In some cases, however, the provisions on the general partnership (OHG) of the German Commercial Code also apply by analogy to the GbR. This also applies to the liability regulations of §§ 128, 160 HGB.
According to § 128 HGB, the partners of a general partnership are personally liable to creditors as joint and several debtors for the company's liabilities. The regulation applies to all liabilities of the company, regardless of the legal basis, e.g. from contract, unjust enrichment, offence, strict liability, etc. This liability also applies to partners who have left the company if they belonged to the company at the time the liability arose.
The limitation of this subsequent liability is regulated in Section 160 HGB. Pursuant to Section 160 (1) sentence 1 HGB, a partner who has left the company is liable for the liabilities incurred by the company prior to his departure if these have fallen due before the expiry of five years and have been established against him. According to Section 160 (1) sentence 2 HGB, this period begins at the end of the day on which the withdrawal was entered in the commercial register of the competent court.
Since these regulations, as mentioned above, are also applicable by analogy to the GbR and thus to any architectural partnerships, retired architects must therefore expect to be held personally liable by "old" creditors of the architectural partnership for a period of 5 years to the extent of their former partnership shareholding.
It should also be noted that in the case of a GbR, the partners (and their withdrawal) are not recorded in any register and therefore the period only begins to run when the respective creditor has positive knowledge of the architect's withdrawal (and the architect can also prove this later in court). This is also not changed by any indemnities in the partnership agreement of the architects' association, as § 160 BGB can be waived, but legal effects in the external relationship (i.e. in relation to the creditor) are only established if the indemnity is also agreed in the contract with the respective creditor of the partnership. This will generally not be the case.
In the above-mentioned judgement, the Higher Regional Court of Karlsruhe now had to decide whether the subsequent liability of a partner who left an engineering association was also covered by the professional liability insurance continued by the engineering association.
Facts of the Case:
Architect was commissioned to supervise flooring work, among other things
In 1997, the plaintiff (architect) was commissioned by the Free State of Saxony to provide architectural services for a state building project. The assigned architectural services also included the services of property supervision of flooring work by a third-party company. The plaintiff assigned this supervision work to an engineering consortium consisting of the defendants 1-4. Various defects then occurred during the execution of the flooring work. As a result, the Free State of Saxony made a claim against the plaintiff for payment of approximately EUR 500,000 as joint and several debtor alongside the executing company on the grounds of inadequate supervision services.
After defects were discovered by the third-party company, the client sued the architectural firm
The plaintiff then brought an action for a declaratory judgement before the Regional Court against the defendants nos. 1-4 for indemnification with regard to the warranty and compensation claims asserted by the Free State. The Regional Court upheld the claim.
The defendant no. 1 was the only one to appeal against the judgement of the Regional Court. As the time limit for appeal had already expired, he also applied for re-establishment of rights. He justified the right to reinstatement by arguing that he had not been properly represented in the regional court proceedings because the professional liability insurer of the engineering association had not been able to issue an effective power of attorney to the lawyer on his behalf. At the time the power of attorney was granted, he had long since left the engineering association and was insured with a new professional liability insurer. In this respect, he should be granted restitutio in integrum.
Judgement of the OLG Karlsruhe
Appeal was inadmissible because the power of attorney granted to the lawyer was invalid
The Higher Regional Court of Karlsruhe did not follow the reasoning of the defendant number 1 and dismissed the appeal as inadmissible and unfounded. The validity of the power of attorney granted by the professional liability insurer of the engineering association for the representation of the defendant no. 1 by the lawyer was not called into question by the fact that the defendant no. 1 had concluded a new insurance contract after leaving the engineering association and had thus left the former insurance relationship.
The supplementary interpretation of the contract on the professional liability insurance of architects and engineers according to §§ 133, 157 BGB (German Civil Code) would show that the subsequent liability of the defendant no. 1 under company law according to §§ 128, 160 HGB (German Commercial Code) was also covered by the insurance cover of the former insurer. Since the lawyer's power of attorney had thus been duly granted by the insurance company and the defendant no. 1 had thus been duly represented, he could not be granted a restitutio in integrum with regard to the failure to meet the appeal deadline and the deadline for filing the grounds of appeal. The appeal was therefore already inadmissible.
Source: Karlsruhe Higher Regional Court
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