One man GmbH : chapter 15

• DOI: 10.10520/EJC74080
• Pages: 211-212
• Author: Christoph Jaehne
• Date: 01 January 2008
• Published date: 01 January 2008

211

CHAPTER 15

ONE-MAN GMBH

15.1 Introduction

As an interesting option noteworthy to mention is the one-man GmbH.

This type of company corresponds to the particular needs of entre-

preneurs while at the same time offering f‌lexibility and limited liability.

15.2 Main features

One of the important innovations of the GmbH Amendment Act of

1980 is the recognition of the corporation of a one-man GmbH. Until

then a GmbH had to be incorporated by at least two members.

However, once formed it was permitted that a GmbH could con tinue

to exist with one member only if the shares of all other members

were transferred over to him. Accordingly, except for the pure forma-

tion stage, the one-man GmbH had long been accepted. The 1980

Amendment, effective as of 1 January 1981, enabled the formation

of a one-man GmbH right from the outset.1

As in the ‘normal’ GmbH the articles of association must be set up.

Accordingly, the founder of the one-man GmbH also has the duty to

establish articles of association.2

Once formed, all provisions with regard to the GmbH apply to the one-man

GmbH. It is a legal entity and as such must have the cor responding

organs. Special regulations, how ever, apply; for example, the record

of decisions of the only member and self-dealings (‘Insichgeschäfte’)

of the only member being also the managing director.3

1 With regard to the one-man GmbH with further references, see Hueck,

gmbHg §1, note 48 et seqq.; Lutter-Hommelhoff, gmbHg §1, note

7. Compare with regard to questions of a pre-incorporation one-man

GmbH (‘Einmann-Vor-GmbH’), i.a., John, “Zur Problematik der Vor-

GmbH insbesondere bei der Einmann-Gründung”, 1982, BB 507, 513;

Ulmer/Ihrig, “Die Rechtsnatur der Einmann-Gründungsorganisation”,

1988, gmbHr 373; Schmidt, 1980, NJW 1769, 1774; Lutter-Hommel-

hoff, gmbHg §11, note 18.

2 §§1, 2 (1) GmbHG. Even though just one individual cannot conclude a

contract with himself, the Act uses the term ‘Gesell schaftsvertrag’ (a better

term in this context would be ‘Errichtungserklärung’ (act of foundation).

3 §48 (3), §35 (4) GmbHG. As previously mentioned, ‘Insichgeschäfte’ can

be translated as ‘doing business with one-self’, ‘self-dealing’. This de-

scribes situations where somebody is acting as principal and agent

and as such con cludes transactions with himself as representative of

another. Therefore it is not possible for the same person to act on both

sides of the transaction unless this is ex pressly permitted.