§ 15 Transfer of shares
(1) Shares are alienable and inheritable.
(2) Where shareholders purchase further shares in addition to their original share, these remain legally independent.
(3) An agreement concluded in notarial form is required for the transfer of shares by shareholders.
(4) An agreement establishing a shareholder’s obligation to transfer a share likewise requires notarial form. However, an agreement concluded without such notarial form becomes valid once the transfer agreement is concluded pursuant to subsection (3).
(5) The articles of association may stipulate that the transfer of shares be made dependent on further conditions, in particular the company’s consent.
Information for non-professionals
To Information for legal professionals
Relevance for legal relations
Section 15 of the Act on Limited Liability Companies (Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG) regulates the transferability of shares in a limited liability company (“GmbH”). As the GmbH continues to be one of the most important forms of company in German law, the provision is of great importance in legal transactions.
A characteristic feature of the corporation, which includes the GmbH, is basically its (facilitated) trading in company shares and thus its orientation towards a certain fluctuation of its shareholders. In contrast to this, the GmbH plays a special role, as the transfer of GmbH shares requires notarization. This is primarily intended to slow down the trading of shares and protect the generally smaller (more personal) group of shareholders from excessive and dynamic changes of shareholders. In this context, questions regularly arise in practice in connection with the obligation to notarize ancillary agreements to the purchase and assignment agreement.
In practice, the agreement on the transfer of company shares is commonly referred to as a "SPA" (Share Purchase Agreement). A central part of a SPA deals with the warranties and indemnities. These are the results of Due Diligence, which the buyer carries out in the vast majority of cases before concluding the SPA (see also General information under f). The results of the Due Diligence are also of particular importance for any W&I insurance to be taken out. Within the framework of a SPA, the parties negotiate an independent liability system that deviates from the statutory liability of the German Civil Code (Bürgerliches Gesetzbuch – BGB). One of the core warranties in a SPA deals with the issue of the chain of title. The fact that the seller is actually entitled to the shares and can freely dispose of them must also be examined in detail as part of the Due Diligence.
In the event of the inheritance of shares in a GmbH, there are also a number of things to consider, in particular the possibility that the heirs are nevertheless obliged to transfer the shares to the remaining shareholders due to assignment, succession or entry clauses in the articles of association of the GmbH.
The shareholders are also given the opportunity to influence the choice of acquirer of the shares through specially drafted assignment clauses or by requiring consent to the transfer (so-called transfer restriction). This is based on the wide scope that the standard allows when drafting the articles of association. In practice, a large number of different contractual clauses have developed on the basis of these regulations, which enable shareholders to control the transfer of shares in a way that serves their individual interests or the strategic objectives of the company.
Information for legal professionals
1) General
a) General information
1Section 15 GmbHG regulates the transferability of shares in a GmbH. The purpose of Section 15 GmbHG is to hinder trading in company shares and to facilitate proof and legal certainty. BGH, Urt. V. 10. 3. 2008 - II ZR 312/06 = NZG 2008, 377 (378).
Section 15 GmbHG regulates the free transferability of shares in paragraph 1.
Author / Law firm
Schindhelm Rechtsanwaltsgesellschaft mbH
Schindhelm Rechtsanwaltsgesellschaft mbH
Lotter Straße 43
49078 Osnabrück / Germany
T +49 541 32 45-0
F +49 541 32 45-100
About the author, Dr. Christoph Bottermann, LL.M., attorney at law
Expertise
Christoph Bottermann advises on company disposal transactions on both the buyer and purchaser side. He has substantial experience in consulting relating to complex M&A transactions, also with participation of financial investors and foreign investors.
Numerous joint venture companies with international participation have been established with his consultancy support.
Christoph Bottermann also advises German and international clients on issues of corporate law and corporate governance.
Experience
Christoph Bottermann has worked for Schindhelm in Osnabrück since 2001 and has been a partner since 2006.
From 1994 to 1998, he was a lawyer at a law firm in Gelsenkirchen that specialised in civil and commercial law.
From 1998 to 2000, he was the head of banking law, investment and reporting at a major capital investment company in Hamburg.
In 2004, he completed the first purely M&A master degree course in Europe at the University of Münster, with the Master of Laws (Mergers & Acquisitions).
He is a specialist author on topics of company acquisitions.
About the author, Dr. Miriam Boehm, attorney at law
Expertise
Advising German and international clients on all issues of corporate law, corporate governance and general contract law.
Advising national and international M&A transactions.
Background
Miriam Boehm is an Associate at Schindhelm in Osnabrück since April 2022.
From 2018 to 2022 she worked as general counsel in a communal company in the area of Energy Law and Smart Metering.
Miriam Boehm took her second state exam in 2015.
In 2016 she received her doctorate degree for her thesis „Claims of indirect damaged persons in French Tort Law – a perspective for Germany and Europe?“ at the University of Münster (Prof. Dr. Dr. h.c. Reiner Schulze).
From 2010 she worked as a Research Assistant at the chair of Prof. Dr. Dr. h.c. Reiner Schulze. Miriam Boehm studied law from 2006 to 2010 at the Universities of Mainz and Münster, including a Foreign Law Program in French.
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