Die Rechtsfähigkeit der nicht eingetragenen Personengesellschaft nach dem MoPeG – Ansätze zur Korrektur eines verfehlten gesetzgeberischen Konzepts

Whether and under which conditions companies and partnerships acquire legal capacity is of pivotal interest in every legal order: The rules applicable to this issue determine whether the relevant entity may actively and passively engage in legal transactions and to whom assets and liabilities acquired on behalf of the entity are legally assigned (the entity or its members); they thus affect the law of obligations, property law, procedural law, enforcement law and insolvency law. Under traditional German law dating back to the year 1900, namely the legal capacity of civil partnerships had been the subject of abundant doctrinal debate, judicial activism and therefore legal uncertainty. By means of the “Law on the Modernization of Partnership Law” (MoPeG), which entered into force on January 1^st, 2024, the German legislator aimed at codifying and modifying the matter in order to provide for a coherent and adequate regime. Unfortunately, the new rules are characterized by considerable shortcomings as they favor the interests of the partners over those of the partnership’s creditors and legal commerce in general. In the article, the author identifies the relevant deficiencies of the MoPeG and provides for solutions to the most pressing issues.