Benedict ReitbergerDie akzessorische Haftung und das Prozessrechtsverhältnis

About this book deutschenglish

Does the simple reference to the accession of partner liability in a personal partnership actually automatically lead to the partners being bound by litigation-related legal agreements between the company and its creditor?

If the question is predominantly supported in courts and literature for the complementary partner, the limited partner who is liable in the same way is not considered to be bound. Similarly, for the guarantor with accessory liability, the view is predominantly held that neither court of jurisdiction nor arbitration agreements extend to him.

The dissertation examines the question of whether accession should be based on a different understanding of the term depending on the type of "security", so that a divergent treatment of the accessory manifestations actually appears justified. To this end, the author examines accessoriness at the material law level as well as the legal position of the individual security providers.

On this basis, the author works out that accession is not the correct approach for establishing a binding effect. As part of an alternative, balanced approach, the author even comes to the conclusion that the extension of an arbitration or court of jurisdiction agreement to the shareholder is in principle not justified. For this purpose, further legal peculiarities of the two litigation agreements, such as the question of the merchant status of the partner or the formal requirement of Sec. 1031 German Code of Civil Procedure (ZPO), are assessed accordingly and included in the balancing decision. Subsequently, the principle of the freedom to bind is measured, among other things, against the question of the place of performance jurisdiction of the partner pursuant to Section 29 ZPO and examined for its internal consistency.

This work thus offers a well-founded examination of a practice-relevant issue in the overlapping area of corporate and procedural law.

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