Director's Liability vis-à-vis third Parties for "Seizing the Cash Box"
Everybody knows the director of a GmbH is generally not liable to a company's creditors during a bankruptcy as a result of grabbing into the cash box too deeply. In this case, the plaintiff came up with an argument not yet considered: liability because of unethical behavior - § BGB. What do you think, did they get away with it? Well, BGH gave its ruling on May 07, 2019 (re VI ZR 512/17).
Director Seizing Cash Box
The defendant, a GmbH, was not able to pay its commitment one day because its director had previously taken several hundred thousand euros from the company assets and used them for non-business purposes. This happened without consent and knowledge of the shareholders.
The plaintiff was of the opinion that the defendant had caused intentional and immoral damages because the director purposely neglected his duties. Therefore in accordance with §826 BGB, the director was personally liable for damages for the loss of the plaintiff's claim.
The Federal Court of Justice denied a direct claim of damages by a business partner against the director of the GmbH from §826 BGB due to immoral violation of a fiduciary duty. It is true that the director is obligated to operate with proper and law-abiding management pursuant to §43 I GmbHG. This liability is only towards the company itself and not to third parties. To constitute a claim for immoral damage, it is not enough that the actor violates a duty and thereby causes damages. The director would have needed, in addition, to act with the purpose of damaging the third party. Since this was not the case here, the plaintiff has no claim.