Access rights are usually agreed in partnership agreements for cases of voluntary or involuntary departure of a partner from the company and can, for example, due to the unexpected death of a partner, the opening of insolvency proceedings over the assets of a partner shareholder or initiation of an execution on the shareholder’s assets.

 

In contrast to partnerships, in the case of corporations, the transfer of the share in the company – except in cases of termination under the law on reorganization or on the basis of the shareholder exclusion law – takes place against payment of a predefined assignment price by the acquiring shareholders. In the case of partnerships, however, the departing partner is entitled – after termination – to a severance payment claim against the company.

 

With recent rulings, the Supreme Court continues its efforts to limit the autonomous determination of the severance payment claim or assignment price by the shareholders and extends the ban on discriminating against creditors in the event of insolvency and execution to all cases of change of shareholder.

It is common practice in partnership agreements to lay down more detailed provisions for a wide variety of cases of the unforeseen departure of one or more partners. This can ensure that access – possibly unwanted – to third parties to the circle of shareholders is prevented.

 

To ensure this, however, if one or more partners leave, their share(s) must be taken up by the remaining partners. Against this background, partnership agreements usually provide for access rights combined with a limit on the severance payment claim of the outgoing partner in order, on the one hand, to promote loyalty to the company and, on the other hand, not to be confronted with the situation of having to finance a high severance payment claim at short notice.

You can find out more about this in our current newsletter.

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