The “state” of the company also has to be considered when assessing the extent of the duty of loyalty: a company that is in a state of liquidation will have a reduced scope of duty of loyalty, since here satisfying the company creditors and distributing the remaining company assets is paramount.
The duty of loyalty towards the “GmbH”
The partners duty of loyalty towards the company has, as a consequence, an obligaltion of the partners to respect the interests and concerns of the company when exercising their rights and to promote the company objective. Any activity that potentially may be damaging to the company is to be refrained form. However, in principle, the duty to loyalty does not always require putting the interests of the company above a partner’s own interests. This means it should definitely be considered that “self-serving” rights, that primarily serve the interests of the partner (right of termination or dissolution and liquidation, property rights, etc.) may, in certain cases , be exercised against the interests of the company. The limit is set by “unreasonably exercising” these “self-serving” rights, or respectively “excessive negative impact” on the company. This may be seen as a violation of the duty of loyalty.
An article in the Tyrolean Business Magazine “eco.nova” by lawyers Sivia Moser and Barbara Egger-Russe reports on the subject in detail: Ewige Treue? (PDF)
Foto: ©Blickfang (Julia Türtscher)
