GbR Losing a Case in Spite of Having all Merits

When suing in court, the defendant has the constitutional right to have the correct plaintiff bringing a case in court against him. This is not always as easy as when two physical persons fight in court. This report is about a GbR, who filed a case in court and lost even though they had all the merits of the case on their side.

This report is about a GbR, who filed a case in court and lost even though they had all the merits of the case on their side. GbR is an acronym for Gesellschaft bürgerlichen Rechts or BGB-Gesellschaft meaning a private partnership where the partners are personally liable with all their private and firm’s assets (§705 BGB). However, they lost the case for formal reasons. How? Easily done. The plaintiffs filed the case in their own names and not in the name of the GbR, even though the business resp. company was the party of the contract.

The plaintiffs appealed to the OLG Brandenburg and it decided on December 14, 2005, (re 4 U 86/05) against the GbR. The latest standing judgment of Federal Court of Justice rules that a GbR has legal and procedural capacity. Claims arising for the BGB-Gesellschaft may only be demanded by the GbR.

This judgment shows that it is always a necessity to watch the formalities and not only the moralities of a case. As seen here, you can easily lose and all of a sudden end up owing a lot of money to your opponent instead of he or she to you.

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