unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
Anyone joining, leaving or inheriting a share in an Austrian OG or KG steps into a specific liability regime. This post orders the legal form, the role and the register steps for a robust succession.
Succession in an Austrian general partnership or limited partnership is not a share deal in the GmbH sense. Anyone entering the partnership takes on either a personally unlimited liability position or the specifically regulated limited partner role. Anyone leaving remains bound for obligations that arose before the exit. And anyone inheriting has to choose between continuation, exit and conversion of role. The legal form must therefore be clarified first, and the role must be named precisely.
In family businesses, the OG or KG often has a long history. The partnership interest is a personal position with voting, management and information rights and with different external liability. An entry without proper due diligence on pre-existing obligations transfers risks that no purchase price and no oral assurance will cover. Every handover therefore starts with the articles, the company register and an honest list of open exposures.
This post orders entry, death, exit and continuing liability for OG and KG. It differs from a general GmbH articles audit and from the later post on old liabilities in a family business transfer. The topic area on articles in succession sets the contractual frame.
The check orders legal form, role and trigger. The result can be sent to the firm together with the key facts.
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OG partners and KG general partners are liable without limit and jointly and severally. Limited partners are liable up to their registered amount as long as the contribution has not been paid in. This basic decision drives approvals, contract clauses, register filings and the way banks and suppliers are informed.
In an OG, death without a deviating clause leads under § 131 UGB to dissolution. If the articles provide for continuation with the heirs, § 139 UGB continues the partnership first with the estate and, after the estate is transferred, with the heirs. Each heir may request limited partner status within three months after that transfer and may leave without notice if the request is rejected. In a KG, the limited partner position generally continues with the heirs, while the general partner follows the OG regime.
Anyone leaving an OG or the general partner role in a KG loses the future participation but remains bound under § 160 UGB for liabilities arising up to that point. The statutory time limit generally starts running with the register filing of the withdrawal. Compensation, payment schedule and continuing liability should therefore be planned in one package.
Any required resolution, amendment and register filing are coordinated. For a new OG partner or KG general partner, personal liability under §§ 128, 130 UGB and the internal allocation are addressed. For an incoming limited partner, liability for pre-existing obligations is governed by § 173 together with §§ 171, 172 UGB.
If rules on approval, continuation or exit are unclear, individual intentions often collide with the statutory position. The clauses should be drafted to work in foreseeable conflict scenarios before any register step is taken. Only then does documenting the entry make sense.
Under § 130 UGB an incoming partner is generally also liable for obligations that arose before the entry. Internal exclusions do not bind third-party creditors. Loans, guarantees, ongoing contracts and open receivables should be captured and documented before the entry, so an internal indemnity can be drafted meaningfully.
The Austrian general partnership under § 105 UGB is a legally capable partnership in which no partner has limited liability towards creditors of the partnership. All OG partners are jointly and severally liable without limit under § 128 UGB. Internal side agreements do not change that. Anyone entering as an OG partner assumes personal liability with their full assets, exactly as the existing partner group already did.
The limited partnership has two very different roles under § 161 UGB. General partners are liable without limit like OG partners. Limited partners are liable directly up to the registered liability amount under § 171 UGB, insofar as the contribution has not been paid in. § 172 UGB governs the situations in which a repayment of the contribution or certain drawings can revive that liability. For succession, the crucial point is which role someone is to step into.
Before any handover, it should therefore be recorded in writing whether the successor will be liable without limit or on a limited basis, which voting and management rights come with the role and how the contribution will be made. Only after that is it worth looking at approvals, register steps and communication with banks. The topic area on transfer restrictions and buy out rights shows how transfer clauses run in parallel.
Under § 130 UGB, anyone entering an existing OG or joining a KG as general partner is generally also liable for obligations that arose before the entry. Exclusions in the internal relationship do not bind third-party creditors. This rule protects creditors but transfers an economically relevant historic risk to the successor. Without a structured record of all old and continuing obligations before entry, the risk stays uncontrolled.
The review should cover in particular bank loans, current account limits, personal guarantees, lease and rental agreements, leasing contracts, running supply obligations and open tax or social security debts. Each item is checked to see whether it has already arisen and in which stage it is. Pending litigation and administrative proceedings also belong on the list.
The existing and new partners can and should agree on an internal risk allocation. It does not change the external liability but ensures that losses land in the right place. Indemnities, recourse rights and security supplement the rule. Anyone who is to stay in the business beyond the entry should also use the review grid for the articles so the internal rules stay aligned.
In an Austrian OG, the death of a partner leads under § 131 UGB in principle to dissolution unless the articles state otherwise. If the articles provide for continuation with the heirs, § 139 UGB continues the partnership first with the estate and, after the estate is transferred, with the heirs. Each heir may request limited partner status within three months after that transfer while retaining the previous profit share. If the other partners reject the request, the heir may leave without observing a notice period.
In a KG the position is different. The death of a limited partner generally leads to continuation with the heirs; the limited partner position is passed on. For the general partner the OG regime applies through § 161 UGB, so continuation clauses, the identity of the successor and the role of the heirs must be drafted with particular care. Without a continuation clause, dissolution is a real risk.
For family businesses this is often the most sensitive point. A will does not replace a contract clause, and a contract without a matching will creates a dispute. Both belong together. The succession risk check gives a first sense of urgency inside the actual family group.
When a partner leaves an OG or the general partner position in a KG, the internal effective date follows the articles, the agreement or the applicable exit event. The exit must nevertheless be filed with the company register. Under § 160 UGB, the former partner remains liable for obligations created before exit if they fall due within five years. That period starts at the end of the day on which the exit is entered in the register; statutory limitation periods and special rules also apply.
In practice this means: without a timely and complete register filing, the time limit for continuing liability cannot run cleanly. Compensation and its payment schedule should therefore be linked to the filing. For limited partners the external liability is already capped at the registered amount; here the crucial question is whether the contribution really was paid in or whether it was paid back, because § 172 UGB revives the liability in such cases.
In the internal relationship, indemnities, security and possible balancing for the continuing liability are agreed. The treatment of personal bank guarantees given by the retiring partner also belongs on the table. Otherwise the participation ends but the liability continues in practice.
In many family businesses the OG or KG grew historically. A spouse became a limited partner because a tax advisor suggested it. An adult child joined as general partner to preserve a credit line. Such structures work for years, until an actual succession is planned. Then the silent side effects come into view.
A typical pattern is that a limited partner has drawn payments over years that formally amount to a repayment of the contribution. § 172 UGB may then revive the liability without the limited partner even noticing. Another pattern is a personal guarantee by a family member to the house bank that continues after the exit from the partnership because it was never expressly released.
Anyone handing over a family OG or family KG should order these silent positions before the change. Internal balancing payments, releases of guarantees and clarification of the actual limited partner or general partner status are the silent part of a clean handover. Without this step, the new succession sits on top of unresolved old roles.
The documents required for a change in the partner group of an OG or KG depend on the articles, the transfer route and the triggering event. The required approvals, any amendment and the company-register filing are therefore assembled for the particular case. Registration makes the change transparent externally and starts the period under § 160 UGB when a partner leaves. Additional contractual or reorganisation form requirements must be checked separately.
Communication goes beyond the register. Banks, suppliers, landlords, insurers and public bodies must be told about the change. Powers of attorney, signing authority and account access are set up again. Otherwise old powers keep creating economically uncomfortable in-between situations.
At the end there is a brief follow-up. What has been registered, what is still open, which guarantees continue and which security was cancelled? This follow-up closes the loop and creates the base for the next succession step. It should not be left as a leftover chore next to daily operations.
Yes. § 130 UGB extends the liability of the incoming partner in principle to obligations that arose before the entry. A contrary internal agreement does not bind third parties. Internal indemnities are possible but do not replace external liability.
Without a deviating rule in the articles, the OG is in principle dissolved under § 131 UGB. If the articles provide for continuation with the heirs, § 139 UGB continues the partnership first with the estate and then with the heirs. Each heir may request limited partner status within three months after the estate is transferred and may leave without notice if that request is rejected.
The limited partner is liable directly up to the registered amount under § 171 UGB as long as the contribution has not been paid in. The general partner is liable without limit like an OG partner. Under § 172 UGB, repayments of the contribution or certain drawings can revive the limited partner's liability.
Section 160 UGB covers obligations created before exit that fall due within five years afterwards. The period begins at the end of the day on which the exit is entered in the register. Claims are subject to the limitation period for the relevant obligation and in any event to a maximum of three years, while section 160(3) contains a special rule for later-maturing claims.
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