An interested party views your house and says: His GmbH will buy it. For further sales planning you must clarify one additional question: Who exactly should be named in the purchase contract later? The economic person behind the project, the contact person involved and the legal purchaser can differ. This article helps private parties selling in Germany to prepare the matter in an orderly way before the notary appointment.
Record the full name instead of a familiar contact
Our editorial recommendation: Ask early for the precise designation of the intended purchaser, registered office, registry details and the status of its registration. Do not simply take these details from an email sender or a stylish company logo. Communicate the actual status to the notary and have the required current evidence filed there.
A GmbH has its own rights and obligations under § 13 GmbHG and can itself acquire ownership of real estate. According to the statutory principle, the company’s assets are liable for its obligations. [GESELLSCHAFT] The commitment of a person who is societally involved is therefore not automatically a personal payment guarantee for the purchase price.
Conversely, this does not mean that a company as purchaser would be fundamentally unsuitable. It requires a clear allocation of the specific transaction. Check identity, representation and payment security as separate questions, rather than deriving an overall positive or negative judgement from the word “GmbH”.
Who may make the declaration for the purchaser?
Under § 35 GmbHG, the managing directors generally represent the company. If several are appointed, the law provides for joint representation, unless the articles of association specify otherwise. [VERTRETUNG] A person who presents themselves only as a shareholder or project developer is therefore not automatically solely authorised to sign.
With a power of attorney, the concrete basis of representation is additionally examined. A sales mandate, a general project presentation or conducting the viewing does not answer this question. Organise the contract appointment only with the persons and evidence actually required. This article does not provide a conclusive registry check and does not confirm any individual power of attorney.
“In formation” is its own processing status
A company that is only planned or not yet registered is not silently treated as if it were an already registered company. § 11 GmbHG stipulates that the GmbH as such does not exist before entry in the commercial register, and contains a personal joint and several liability of those acting for acts performed before registration in the name of the company. [GRUENDUNG]
No general personal purchase price security sufficient for every formation process can be derived from this. Who is to be committed in which phase of formation and how, and what effects a later registration has, requires a concrete legal structuring. Ask about this expressly before signing, rather than dismissing the addition “i. G.” as a mere form of writing.
Example: The economic plan remains the same, the purchaser changes
In the fictitious case an interested party conducts all negotiations personally. Shortly before notarisation he names a new project company as purchaser. The selling side has so far only seen financing information referring to him personally. It would therefore sign a different contractual status than previously assumed.
The sensible next step is coordination with the notary and an appropriately allocated clarification of the purchase price payment. The personal acquaintance already established does not replace this check. The example does not allege either an attempt at fraud or that a particular bank detail would always be unusable. It shows a changed premise that must be dealt with before contractual commitment.
Discuss payment and any later change of party explicitly
Have it explained to you which purchaser a financing confirmation actually refers to and under what conditions funds are to be available. A general statement about the financial strength of a corporate group is not automatically an equivalent commitment of the contractual purchaser.
An announced later change to another company also remains a contractual question. It is not resolved by the non‑binding statement “That all belongs to us anyway”. State the wish to the notary and clarify which consents, securities and further consequences must be considered. The article does not recommend an unchecked assignment or change clause.
Preparation is successful if you can say before notarisation who is buying, who acts effectively and how the agreed payment is to be carried out in concrete terms. This turns a plausible project story into a comprehensible business transaction, without pre-empting the individual legal and economic examination.