BGH increases the attractiveness of foundations and associations
The Federal Court of Justice (BGH) has decided that a non -profit foundation is not obliged to do anything by legal transaction if the legal transaction is harmful to the non -profit organization and secondly, the power of representation of the board is limited accordingly. The decision should be transferable to clubs without restrictions. It is based on a remarkable privilege that enjoys clubs and foundations in front of corporations or passengers. While the representative power of their managing directors in the external relationship is not limited for the latter two types, such a restriction is permitted for association or foundation board members (section 26 (1) sentence 3 of the German Civil Code). The restriction must be visible from the register or the opposite side. It follows: If the board of an association acts outside its power of representation, the association or the foundation does not justify binding rights or obligations.
Determination of the limitation of liability
However, the decisive factor is the individual case, namely how the restriction of the power of representation is specifically designed in the statutes. In its decision, the BGH puts itself in a line with the Bavarian Higher Regional Court. On closer inspection, this line is anything but a straight guideline. The Bavarian Higher Regional Court decided more than a quarter of a century that a limitation of the power of representation was ineffective if the statute provides that the power of representation of the board does not extend to "investment measures" from a certain amount. The BGH builds on the requirement of sufficient certainty. In the decided case, he stated that if the statutes determined that the power of representation was limited to the "purpose of the foundation", in the event of a non -profit corporation, the limit of non -profit nature is also decisive. According to the BGH, this "limit", unlike the previously chosen term "investment", is by no means too "indefinite" - even if - as in the decided case - it could only be clarified with the help of three expert reports that the limit had exceeded.
Advisory procedure
The decision of the BGH shows a need for action, both for clubs and foundations as well as for the members of their representative organs:
Associations and foundations should be checked and advised whether their respective statutes offer sufficient protection against legal obligations that are not compatible with their purpose. This applies in particular to non -profit bodies. In legally binding shops, which are not compatible with their purpose, the dismissal of the non -profit nature with the tax consequences that even result from it, at least even the officially ordered dissolution and handling of the association or the foundation.
Members of the representative organs of foundations or associations must check which risks exist for you personally if you are liable for actions that you have carried out as a board member outside of your power of representation. This liability risk should be enough to check in detail in advance of important organ decisions whether the decision is covered by the organ's power of representation. In addition, the liability risk described should also be the reason to check the necessity of asset liability insurance for organ members (D&O insurance) in general and in the specific case the suitability of a corresponding insurance offer. It should also make sense to undergo employment contracts by organ members.
Business partners of associations and foundations should also know the statutory restrictions on the power of their respective negotiating partner on the club or foundation side.
last but not least
The possibility of protecting the assets and the existence of the corporation from non -binding, non -profit corporate corporations should be enough for associations and foundations that are only available for associations and foundations through statutory restrictions on the power of representation of the board of representation. dedicate.
