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The silent partnership in the German Commercial Code: contribution, results, exit and insolvency
The module’s worked examples, then cases to attempt before revealing their solution · 2 sections · 315 words · 3 min
Worked example
A loss year casts a shadow
A silent partner has contributed 40,000 € and shares 25 % in the result. In year one the business makes a loss of 20,000 €; her share of 5,000 € reduces the contribution to 35,000 €. In year two profit is 32,000 €. Her share of 8,000 € first refills the missing 5,000 €, and only 3,000 € is paid out.
Practical case
Three years of a silent stake
Ms Albers takes a silent stake of 50,000 € in a wholesaler's commercial business and pays the contribution in full. The agreement gives her 20 % of profit and loss; nothing else is agreed. In year one the business makes a loss of 150,000 €, in year two a profit of 100,000 €. In year three insolvency proceedings are opened, and a loss share of 10,000 € falls on Ms Albers for that year. How much is paid out to her for year two, and for what amount can she file a claim as an insolvency creditor?
Hint: Keep the contribution like an account: losses reduce it, later profits refill it first (section 232(2), second sentence, HGB).
Show the solution
In year one her loss share is 20 % of 150,000 €, i.e. 30,000 €; the contribution falls to 20,000 €. In year two she is entitled to a profit share of 20 % of 100,000 €, i.e. 20,000 €. Because the contribution is still reduced by 30,000 €, this profit is used entirely to cover the loss: nothing is paid out, and the contribution then stands at 40,000 € again. In year three the loss share of 10,000 € reduces it to 30,000 €. Under section 236(1) HGB, Ms Albers may file the contribution to the extent it exceeds the uncovered loss falling on her, 20,000 € in total: 50,000 € minus 20,000 €.
Answer: No payout for year two; an insolvency claim of 30,000 €
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