Director Giving Notice in Times of Need

OLG Bamberg decided on July 17, 2017 (re 5 W 51/17) on the action of a director when giving notice when the company was in a crisis. Was it permissible to give immediate notice without any special notice?

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The court held that generally a director may abandon the company at any time – if the articles of association do not determine otherwise. However, it is not allowed to give notice at an "inappropriate time" e.g. when the company is in a crisis. In that situation the director can be held liable for damages due to misuse of legal rights. This is the general rule.

Das OLG Bamberg now decided and clarified that this principle of misuse of legal rights does not apply to a director not holding shares or in a similar position. In other words, it constitutes a misuse of rights when the sole shareholding director quits and does not institute a replacement. The company must at all time be able to interact with the public. When a director without holding shares resigns, shareholders still exist and can appoint a new one. The company, though with hiccups, still can act.