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von Göler (Hrsg.) / GmbH Online-Kommentar / § 19

§ 19 Payment of capital contributions

(1) Payment of capital contributions in respect of the shares is to be made in proportion to the contributions in cash.

(2) Shareholders cannot be exempted from the obligation to pay capital contributions. A payment may be offset against the company’s claim only in the form of a claim arising from the transfer of assets whose crediting against the obligation to pay capital contributions has been agreed in accordance with section 5 (4) sentence 1. No right of retention may be asserted against the object of a contribution in kind on the basis of claims which do not refer to the object.

(3) Shareholders can be exempted from the obligation to pay capital contributions on the basis of a capital reduction at most in the amount of that contribution by which the share capital has been reduced.

(4) If, upon economic consideration and on the basis of an agreement reached in connection with the taking over of a contribution in cash, a contribution in cash made by a shareholder is to be regarded either fully or partly as a contribution in kind (ʻhidden contribution in kindʼ), this does not exempt the shareholder from the obligation to pay a capital contribution. However, the agreements concerning the contribution in kind and the legal acts performed to execute them are not ineffective. The value of the asset at the point in time at which the company files the application for entry in the Commercial Register or the point in time of its assignment to the company, if this is a later point in time, is credited against the shareholder’s continuing obligation to pay a contribution in cash. The crediting is not effected before the company is entered in the Commercial Register. The burden of proof regarding the intrinsic value of the assets is on the shareholder.

(5) If a payment to the shareholder has been agreed prior to the capital contribution which corresponds, in economic terms, to a repayment of the capital contribution and this is not to be regarded as a hidden contribution in kind within the meaning of subsection (4), this exempts the shareholder from the obligation to pay a capital contribution only if the payment is covered by the full right of return which is due at any time or can fall due on account of termination without notice by the company. Reference to such payment or the agreement to make such payment is to be included in the application for registration made in accordance with section 8.

(6) The company’s claim to payment of the contributions becomes statute-barred 10 years after the claim arises. Where insolvency proceedings are opened against the company’s assets, the period of limitation does not end until six months have elapsed since the insolvency proceedings were opened.

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