Berlin appellate court accepts foreign notarisation of a GmbH formation

Written by dev on 8. June 2026. Posted in Case law, Corporate law.

On 24 January 2018 the Higher Regional Court of Berlin (Kammergericht Berlin) decided that the notarisation of the formation of a German GmbH (limited liability company) by a Swiss notary in Canton Bern is valid and must therefore be registered in the German Commercial Register (case no. 22 W 25/16). The final and binding judgment was issued in connection with the – in comparison to Germany – significantly more flexible notary fees in Switzerland and the discussion of what extent the notarisation of German agreements can be transferred to Switzerland. The relevant norm for the notarisation abroad is Article 11 (1) EGBGB¹. It considers a transaction as valid if it complies with the form requirements of the so-called transaction law (that is the law applicable to the transaction itself = lex causae) or the form requirements of the state where it is consummated (so-called local law).

The court considered the notarisation in front of the Bern notary equivalent to the one before a German notary and therefore recognised the Swiss notarisation pursuant to the transaction law. This is as such not surprising because the Federal Court of Justice (Bundesgerichtshof) in the past approved multiple times notarisations in Switzerland as equivalent (last in 2013 even after the coming into force of the MoMiG² and the Swiss GmbH-reform)³. It is worth noting, however, that the Berlin decision dealt with the formation of a GmbH and not only the transfer or pledge of shares in a GmbH. The appellate decision therefore goes, with its approval, beyond prior judgements.

The decision strengthens the notarisation in Switzerland. Under certain conditions one may now even contemplate the notarisation of transactions which affect the constitution of the GmbH (like the formation, transformation, amendments to the articles) in certain Cantons of Switzerland, in particular when the involved values are particularly high.

BGH invalidates written form cure clauses in lease agreements

Written by dev on 8. June 2026. Posted in Case law, Real estate.

By judgement of 27 September 2017 (case no. XII ZR 114/16) the Federal Court of Justice (BGH) declared so-called written form cure clauses generally invalid, no matter if they were agreed in general terms or negotiated individually.

Background of the decision is § 550 German Civil Code, according to which long-term lease agreements require written form. If the written form is not complied with the lease agreement has an indefinite term and can be terminated early with a statutory notice period. Since compliance with the written form may become difficult in practice (e.g. for side agreements) the market practice in the past often used so-called written form cure clauses pursuant to which both parties undertook in the lease agreement to cure possible form defects and not to terminate the lease agreement by reason of such defects. As the court cut the ground from under this practice the legal due diligence on compliance with the written form requirements is once again becoming more important.

Berlin appellate court accepts foreign notarisation of a merger of two GmbHs

Written by dev on 8. June 2026. Posted in Case law, Corporate law.

On 26 July 2018 the Higher Regional Court of Berlin (Kammergericht Berlin) decided that the notarisation of the merger agreement and the merger resolutions for the merger of two German GmbHs (limited liability companies) by a Swiss notary in Canton Basel-Stadt is valid and must therefore be registered in the German Commercial Register (case no. 22 W 2/18). The final and binding decision was made in conformity with a previous decision of the same court dated 24 January 2018 which JP Rechtsanwälte has already examined in an earlier article.

The decision strengthens the notarisation in Switzerland further. Under certain conditions one may consider the notarisation of transactions which affect the constitution of the GmbH (like the formation, transformation, amendments to the articles) in certain Cantons of Switzerland, in particular when the involved values are particularly high.