## Facts

- A construction contractor contracted with a project-development/building-supervision GmbH to perform building work.
- The GmbH’s sole shareholder was the managing director’s wife; the managing director ran additional business entities in the same sector.
- The contractor largely completed the work, but the GmbH lacked assets to pay and later collapsed and dissolved.
- The contractor alleged the managing director de facto controlled the GmbH and a network of related entities, subordinating the GmbH’s interests to group aims.
- The contractor sued the managing director personally for the unpaid contract claim, asserting that group-oriented control caused the GmbH’s inability to pay.
- Lower courts imposed personal liability on the managing director based on abusive domination resembling a “qualified de facto group” scenario.

## Issues

1. Under what conditions may a controlling person (including a managing director) be held personally liable to an individual creditor of a GmbH for debts arising from group-oriented domination of the GmbH.
2. Whether personal liability may be imposed merely because the GmbH was factually dominated and became insolvent, or instead requires proof of sustained domination, structural subordination, and causation.

## Decision

- The court accepted that personal liability can exist in principle where a GmbH is subjected to qualified de facto group control that deprives it of autonomy and harms creditors.
- The court narrowed earlier approaches by requiring stricter, concrete conditions for liability, including:
  - sustained, group-oriented domination,
  - structural subordination of the GmbH’s separate interests, and
  - a causal connection between the abusive control and the GmbH’s inability to satisfy obligations.
- The court rejected an expansive, near strict-liability model that would make the controller a general guarantor of the GmbH’s debts.

## Legal Principles

- A creditor-facing liability theory tied to de facto group control is exceptional and requires more than ordinary intercompany influence or overlapping management.
- “Qualified de facto group” conditions focus on structural loss of corporate autonomy and systematic disregard of the controlled company’s separate interests.
- Insolvency alone does not establish controller liability; the claimant must prove that the controller’s group-oriented measures caused or materially contributed to the inability to pay.
- The inquiry is conduct- and structure-based, not effects-only; liability turns on demonstrable abuse of control and proven causal harm.

## Conclusion

The decision preserved the possibility of personal liability for abusive de facto group control of a GmbH but confined it to cases of sustained domination that structurally subordinates the GmbH and is shown to have caused the creditor’s loss, thereby limiting broad controller-as-insurer theories.


TBB (BGH), II ZR 265/91 (Mar. 29, 1993)