Legal claim against companies that have already been dissolved
June 16, 2009 | 15,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello,
Is there a legal right against companies that have already been dissolved?
For example, a car dealership is dissolved and replaced by a new independent company. The operation is taken over 1 to 1, but with a new owner and a new company name.
The previous company was a GmbH and Co KG. The junior did not want to continue the business. So no bankruptcy. It is a BMW authorized workshop and is now also under a new name and owner.
Regarding the situation: Before purchasing the car, the fender was repainted due to rust. This was also recorded in the purchase agreement. I was assured that I would not have any problems with this. The car remains rust-free for 4-5 years, even longer with good care. (This is also legally binding, right? Purchase agreements do not necessarily have to be in writing). However, now after 1 1/2 years, rust has appeared again at that exact spot. Could there possibly be a hidden defect here? I could not see if there was still rust under the paint that would spread over time. I assume that the defect was only visually repaired so that the car could be sold.
What claims can I assert here or do I possibly have no options because this company no longer exists?
The car was purchased in January 2008. It was a used car purchase. The terms and conditions limit liability for defects to 1 year.
Thank you.
Dear inquirer,
Thank you for your inquiry!
I would like to address your questions considering the circumstances you have described:
First of all, it is important to note that in your case, we are dealing with warranty claims that, according to your description, have not yet expired.
The limitation of the expiration of warranty claims, as described in your terms and conditions, is generally permissible.
Therefore, the limitation period for warranty claims due to defects is one year.
This limitation period starts according to § 438 para. 2 BGB with the delivery of the item, in this case, the used car. Since, as you have described, this took place in January 2008, warranty claims have unfortunately already expired at this point.
The situation would be different only if the seller had intentionally concealed the defect, specifically if they had concealed that there was rust under the paint (this ultimately comes down to a question of proof).
In this case, the limitation period according to §§ 438 para. 1 sent. 1, 195, 199 BGB would be 3 years, meaning that this claim would not yet have expired.
Then the question arises of whether this claim can be enforced against the dissolved company or its owner.
Based on your description that the company name was not taken over, there is generally no liability for the new owner according to § 25 HGB.
If the old company was a partnership, such as a GbR, a KG, an OHG, a GmbH, or an AG, which unfortunately is not clear from your description (but can be presumed in the case of a BMW authorized workshop), then the former owner or more specifically the partners are still liable.
This is directly stated in the law, specifically in § 159 HGB, which I have attached for your better understanding:
[...]
I would like to finally point out the following:
The legal information I provided is solely based on the facts you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the circumstances.
Adding or omitting relevant information can lead to a completely different legal assessment.
I hope that my explanations have been helpful to you.
Feel free to reach out to me through the follow-up option on this platform or via my email address for further questions.
I am also available for further legal representation. If you decide to hire me, the initial consultation fee paid here will be fully credited.
Wishing you a pleasant Monday afternoon and a good start to the week!
Sincerely,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax 0471/3088316
