If you merge with one or more partners, you automatically form a so-called partnership of civil law (GbR or also BGB-Gesellschaft in German). The GbR can be founded by tradespeople and by freelancers.
Simple partnership: The GbR
The GbR is ideal for every uncomplicated form of business partnership (small businesses, joint practices, freelance professions, working groups).
No special formalities are required, an oral agreements between the partners are sufficient. A written contract is however recommended.
There is also no minimum capital requirement.
The GbR belongs to the category of “partnerships”, i.e. its partners are both liable with their private assets for all liabilities of the company (e.g. tax liabilities). In the partnership agreement (internal relationship) they can however agree on special rules.
Note: In principle, the GbR “automatically” becomes an OHG if the company carries on a commercial business. A commercial enterprise in this sense is given if the type and scope of the company requires a business operation set up in a commercial manner (Section 1 (2) HGB).
Establishment of a GbR
A GbR can be founded by at least two partners. The partnership agreement is concluded in written or oral form. Templates for written GbR contracts are offered, for example by the German Chambers of Industry and Commerce or the Chambers of Crafts on their official websites. However, these templates should only serve you as a guide. In any case, you should consider consulting a lawyer or notary to adapt the GbR partnership agreement to your individual needs. Determine, for example, which decisions are made jointly, which are borne solely by the respective partners, how much the monthly private withdrawals may be, etc. Avoid possible future conflicts or legal disputes by defining clear regulations in your partnership agreement.
Registration of the GbR?
A GbR is not registered in the commercial register. If it is a commercial activity, each partner must register with the trade office. If it is a freelance activity, each partner must apply for a tax number at the tax office.
Company name at the GbR
The name of the company must always include the first and last names of the partners. In addition, an industry, factual or fantasy name can also be added. And finally, “GbR” should be added to the name.
Examples:
Peter Müller and Michael Meier, Service rund ums Haus, GbR
Susanne Klar, Ernst Schulz, Petra Dunkel, Sport-Fitness-Wellness, GbR
Klara Meister and Sabine Kurz Sunshine, GbR
Particular object-additions such as “Sunshine” must be examined in terms of name and trademark law, in particular appropriate, professional similarity searches must be carried out. Get in touch with a specialized team of attorneys that will support you in these kind of matters!
Every business letter (invoice, order, offer, delivery note, etc.) must contain the full company name.
Management and representation of the GbR
The management and external representation is jointly in the hands of all shareholders. The management includes, for example, accounting or control of bookkeeping, correspondence, control of work processes. External representation refers to the conclusion of contracts (e.g. purchase, service and supply contracts) with third parties. In order to conclude legal transactions with third parties, all shareholders must give their consent. However, management and representation can be restricted or divided in the shareholder agreement.
Liability of the GbR and its partners
The GbR belongs to the partnerships. For liabilities arising from contracts concluded in the name of the company, the company assets and the partners therefore have unlimited liability with their private assets. If a partner is held liable alone, he can demand proportionate compensation from the other partners. Deviating agreements can be stipulated in the partnership agreement. However, these do not have any effect on third parties. If no contractual provision has been made, all partners are equally liable. A limitation of liability towards third parties is only possible if it has been agreed individually with the contractual partner. A general limitation of liability is not possible.
Taxes of the GbR
If it is a business enterprise, the GbR must pay trade tax. A freelancer GbR is not liable to pay trade tax.
Each of the partners (natural persons) is liable to income tax. The amount of the income tax is based on the share of profit that is allocated to each partner after uniform and separate determination.