Judgments on the Law of Management Board Liability (Cooperative, eG)

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Below you will find one of the most comprehensive and up-to-date collections of interesting judgments of recent years on the law of management board liability. You will find further judgments in corporate law on other corporate law topics on the overview page.

The judgments are updated continuously.

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Claim for damages against the management board of a cooperative due to the conclusion of a disadvantageous purchase agreement

KG 2020

(1) If the board of directors of a cooperative acts in breach of duty in the sale of real property despite the broad entrepreneurial scope granted to it and concludes a purchase agreement that is disadvantageous for the cooperative, the causality for damages due to the encumbrance with, inter alia, architects' fees does not cease to exist due to the fact that the cooperative sets the cause for a withdrawal of the buyer in order to prevent the further realisation of the sale.

2. insofar as the cooperative thereby remains the owner of the land and refrains from a new sale, it is possible not to take into account a significant increase in land prices that has occurred in the meantime and not to apply the principles of benefit sharing.

(3) If a defendant who is successful on the merits does not lodge an immediate appeal within the time-limit against a mixed costs decision which is partially unfavourable to him, in so far as it is based on § 91a (1), first sentence, of the Code of Civil Procedure on the basis of a concurrent declaration of partial satisfaction, his submissions in the statement of defence may be interpreted as a cross-appeal against the costs decision, in so far as this is unfavourable to him.


Liability of the Board of Directors of a Cooperative for the Granting of Loans in Violation of the Articles of Association

OLG Brandenburg 2020

(1) The managing board of a cooperative is guilty of breach of trust if, contrary to the articles of association, it has agreed a loan that is effective in relation to third parties without consulting other members of the board and without the consent of the supervisory board and has arranged for the loan to be paid out, even though the granting of the loan was not part of the decisions arising in the ordinary course of business that it was entitled to make alone in accordance with the content of its service contract.

(2) In order to determine whether the cooperative has suffered a pecuniary loss as a result of the granting of the loan, it is necessary to determine what the repayment claim is worth on the market.


Liability of the manager of a building cooperative

OLG Brandenburg 2020

1. the manager of a building cooperative exceeds his entrepreneurial discretion if he recommends to the supervisory board a building project, the costs of which cannot be covered by the expected income for an uncertain period of time.

(2) The limitation period for the claim for damages based on the recommendation of the manager in breach of duty shall commence with the conclusion of the first contract relating to the construction project.


recusal of a commercial judge

OLG Frankfurt a. M. 2018

If a commercial judge is a member of the supervisory board of one of the parties to the proceedings, this constitutes grounds for recusal on grounds of bias.


Insolvency administrator, Condominium Act, condominium, condominium association, condominium owners' association, insolvency estate, debtor

OLG Cologne 2017


Insolvency debtor, over-indebtedness, debtor-in-possession account, insolvency administrator, intervening party, cooperatives, application for insolvency, content of statement of claim, insolvency, surrender of documents, authorized representative, contractual relationships, tax advisor, ancillary claims, plea of limitation, plea of limitation, limitation period, consultancy contract, joint and several debtor, insolvency court

LG Arnsberg 2016


Effect of an application for goods on the statute of limitations

LG Traunstein 2015

An application for conciliation must be sufficiently individualised in order to suspend the statute of limitations pursuant to section 204 (1) no. 4 BGB. It must describe the objective of the proceedings at least to such an extent that the opposing party and the conciliation office are able to draw conclusions as to the nature and extent of the claim being pursued. In principle, this also includes the quantification of the claim.


Cooperative, liability

LG Düsseldorf 2014

(1) If a cooperative makes a claim against members of the management board, it must demonstrate and prove that it has suffered damage as a result of conduct by the members of the management board that may have been in breach of their duties. The board members must show that they have complied with their duty of care or that the damage would also have been caused by lawful alternative conduct. In this respect, the executive board of a cooperative, just like the executive board of a public limited company, has a wide scope of action without which entrepreneurial activity is hardly conceivable. The scope is exceeded if, from the point of view of a prudent and conscientious manager, the high risk of damage is unavoidable and there is no reasonable economic reason for taking it nevertheless. However, there is only room for exercising discretion once the management board has carefully determined the basis for the decision and weighed up the pros and cons.


Limitation of the claim for damages arising from a breach of duty by a cooperative against its supplementary liquidator

BGH 2012

(1) A cooperative's claim for damages against its supplementary liquidator for breach of its duties shall become statute-barred after five years pursuant to § 34 VI GenG.


Building cooperative, claim for compensation, declaratory motion, set-off, member of the management board, profitability calculation, construction project, claim for damages, cooperative, net cold rent, rental income, breach of duty

OLG Brandenburg 2012


Insolvency administrator, purpose of association, construction of own home, neighbourhood assistance, member of the board of directors

OLG Düsseldorf 2010


Recourse proceedings, board members, breach of duty

OLG Naumburg 2010


Competition of tenancy law deposit provisions with cooperative law - "increase resolution" triggering obligation to acquire shares

LG Regensburg 2009

(1) The provision of § 551 of the Civil Code concerning rent deposits does not apply to cooperative shares to be taken over because the cooperative shares are the financial participation in the cooperative as a company itself and therefore represent its equity capital.


Board of Directors Damages Lending Loan, Board of Directors, Damages, Lending, Loan, Life Insurance, Realization Proceeds

OLG Frankfurt 2009


Executive Board, Executive Board member, remuneration, discharge, employment relationship

LG Neuruppin 2009


Limits of entrepreneurial board discretion

BGH 2008

(1) There is no room for the exercise of business judgment by the board of directors of a cooperative bank until it has carefully determined the basis for its decision and weighed the pros and cons of various courses of action.

(2) If, contrary to § 531 II No. 1 of the Code of Civil Procedure, the Court of Appeal rejects factual submissions made by a party on a point of law which was not considered at first instance, even though it recognises that this point of law was of importance for the first time at the appeal stage, it also infringes the party's right to be heard.


Revision, quarter, reimbursement of costs, liability, lack of fault, burden of presentation and proof, burden of proof, annulment, challenge, disqualification, official conduct

OLG Brandenburg 2008


Compensation, member of the board of directors, housing cooperative, overindebtedness, invalid termination without notice, lack of good cause, lack of evidence, reinterpretation, ordinary termination

OLG Naumburg 2008


Liability of members of the board of directors of a cooperative bank for granting insufficiently secured loans

OLG Dresden 2007

(1) Members of the management board of a cooperative bank may in principle not grant loans without the usual collateral and only in compliance with the upper lending limits and with a positive assessment of the ability to service the capital. A violation by the members of the management board of § 18 KWG is to be affirmed in any case if, despite the granting of a loan of a high amount, they do not have sufficient documents presented to them in order to be able to form a clear, timely and sufficiently reliable picture of the borrower's economic circumstances. This is true even if the loans are not extended for commercial purposes.

2. the members of the board of directors of a cooperative bank who are held liable for damages have neither a claim against the cooperative for assignment of the claims under a D & O insurance policy nor for delivery of the insurance policy.


Personal liability of the manager of a bank for the granting of credit

OLG Koblenz 2007

(1) A discharge resolution of the shareholders' meeting is not void without further ado in the case of self-discharge of supervisory board members. Only the wrongly cast votes are invalid. It must therefore be examined whether the result of the vote changes after deduction of the invalid votes. A final court decision on the invalidity of the discharge resolution is effective for and against everyone. A party not involved in the contestation proceedings who is affected by the res judicata effect of the declaration of nullity may, in the event of a decision-relevant violation of his or her right to be heard before the court, subsequently raise the hearing complaint or a constitutional complaint.

2. the managing director of a bank who is involved in the preparation of decisions of internal supervisory bodies in the granting of large loans, but who cannot decide on his own, is not entitled to any discretionary power with regard to the information on the entrepreneurial decision in the run-up to the decision of the body. He must inform the supervisory board completely and accurately.

(3) A breach of duty by the managing director is also deemed to have occurred if he exceeds his authority. This applies in particular if the responsible supervisory body is not called in contrary to instructions. In this case, there is no possibility of exoneration for the managing director.

5 There is no limitation of the Managing Director's fault to intent or gross negligence in accordance with the employment law principles of risk-related activity. There is also no claim of the managing director against the company for the conclusion of a special liability insurance.


Claims for damages of a cooperative against its board of directors - burden of presentation and proof

BGH 2007

(1) In a legal dispute about claims for damages against its executive board pursuant to § 34 II 2 GenG, a cooperative only has the burden of presentation and proof that and to what extent it has suffered damage as a result of the executive board's conduct in the scope of its duties, which may be in breach of its duties, whereby it can benefit from the facilitations of § 287 ZPO; in contrast, the managing director must present and, if necessary, prove that he has fulfilled his duties of care pursuant to § 34 I GenG or that he is not at fault or that damage would also have occurred in the event of dutiful alternative conduct. In contrast, the manager must demonstrate and, if necessary, prove that he has fulfilled his duties of care in accordance with § 34 I GenG or that he is not at fault or that the damage would also have occurred in the event of dutiful alternative behaviour.

2. on the due diligence obligations of the board member of a cooperative bank when approving a loan and subsequently extending it.


Severance pay, breach of duty, damages

OLG Naumburg 2006


Obligation to pay fees and contributions for cooperative members by statute

Karlsruhe Regional Court 2006

(1) The articles of association may not impose an obligation to pay fees and contributions on members of a cooperative. An amendment to the articles of association in breach of this is not only contestable but also null and void.

2. an exclusion of a cooperative member decided jointly by the executive board and the supervisory board shall be invalid if the articles of association provide for the executive board to decide on the exclusion and for the supervisory board to decide on the appeal against the exclusion.

(3) A resolution of a cooperative which is passed without a member who has been wrongly denied admission to the general meeting is in principle only contestable, not null and void. The means by which the member is denied participation in the adoption of the resolution are irrelevant.


Personal overall responsibility of the member of the board of directors of a cooperative society

OLG Frankfurt a. M. 2006

(1) In a cooperative, each member of the management board, in addition to the individual professional responsibility for his own business area assigned to him in accordance with the rules of procedure of the management board, also bears, in principle, the overall personal responsibility for the entire scope of management. If there is a tangible reason for a member of the management board to no longer trust that the co-management board will properly fulfil the tasks incumbent on him alone in accordance with the articles of association, his professional responsibility no longer takes second place to that of this co-management board.

2. the statutory audit of the cooperative auditing association does not replace or diminish the monitoring and review duties of the board of directors.


Supervisory Board, contributory negligence, heating, claim for severance pay

LG Dessau 2005


Employment contract, supervisory board, preclusion period, termination without notice, insolvency petition, member of the management board

OLG Naumburg 2005


Liability of the member of the board of directors of a cooperative bank

BGH 2005


Breach of duty as liquidator - defective convening of the meeting by which the liquidator was appointed

BGH 2004


Cooperative, liability

BGH 2003


OLG Rostock Urt. v. 28.2.2001 - 6 U 227/99, BeckRS 9998, 42605

OLG Rostock 2001

According to § 34 II GenG, a managing member of the executive board who violates the obligations of a proper and conscientious manager of a cooperative is obliged to compensate the cooperative for the resulting damage. According to general principles, the cooperative must present and prove all facts giving rise to a claim, i.e. objective breach of duty, causality, damage and fault.


OLG Hamm Urt. v. 16.10.2000 - 8 U 197/99, BeckRS 2000, 8818

OLG Hamm 2000

1. section 34 subsection 2 sentence 1 GenG cannot be applied by analogy to the effect that individual members are also entitled to assert claims.

2. in a cooperative with more than 500,000 members, the normal actions of a member of the board of directors towards the cooperative members do not justify a special trust which would justify a personal claim based on culpa in contrahendo due to insufficient information about the economic situation of the cooperative.


OLG Karlsruhe Urt. v. 15.6.1999 - 3 U 33/98, BeckRS 9998, 42275

OLG Karlsruhe 1999

1. a) The period of § 626 II of the German Civil Code does not begin to run until certain facts arise from individual circumstances or from a suspicion and the entitled party becomes aware of sufficiently certain facts in such a way that he can now form his own opinion about the scope of the overall circumstances and thereupon decide on the termination.

b) Even if the supervisory board of a cooperative bank is informed about the economic situation of the bank and the failure of the chairman of the management board to fulfil his duties, a new extraordinary reason for termination arises if the Federal Banking Supervisory Office issues a supervisory disapproval of the chairman of the management board or if the guarantee institution of the Raiffeisen and Volks banks demands his dismissal.

2. a) The company may extraordinarily terminate the employment relationship of the representative body if the body concerned has not only slightly culpably caused the withdrawal of confidence by the shareholders. This is the case if the Chairman of the Bank's Board of Managing Directors, despite a cautious lending policy required in view of the Bank's difficult situation, allowed loans to be granted that were associated with above-average risks.


BGH decision of 14.6.1993 - II ZR 142/92, BeckRS 9998, 87647


(1) A pension commitment which is not yet subject to the vesting protection of the BetrAVG may be revoked with reference to § 242 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) if the beneficiary has acted in breach of duty over a period of years and has thereby caused serious damage to his employer which threatens his existence.

(2) A member of the management board of a credit cooperative shall be liable for damages to the credit cooperative if, contrary to all customary banking prudence, he grants credit to a single group of debtors on an irresponsible scale, fails to exercise all due care in securing the loans and fails to heed repeated notices, warnings and reprimands by the Auditing Association and the Federal Banking Supervisory Office.


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