With the entry into force of the UGB on January 1, 2007 and the associated revision of § 105 UBG, the legal capacity of the OG and KG has now been expressly established. According to a decision by the Supreme Court, this means that it is possible to use the name of the limited partner as well as that of the consumer.
The starting point is the status of the partnership according to the UGB: The partnership itself is the sole holder of rights and obligations, sole owner of the assets and operator of the company, which is why it also has entrepreneurial status within the meaning of Section 1 UGB by virtue of its position.
However, the situation is different for shareholders, who are not entrepreneurs simply because they are shareholders, even if they have unlimited liability. Therefore, if the entrepreneurial status of a shareholder of an OG, as well as a general partner of a KG, cannot be affirmed without a detailed examination, nothing else can apply to limited partners.
In its decision of 19.3.2013 (4 Ob 232/12i), the Senate shares the concerns about the exclusive economic approach in the assessment of entrepreneurial status, as already expressed in more recent literature. Schuhmacher, for example, notes that every acting party has an economic self-interest in the legal transaction. P. Bydlinksi also expresses doubts, as an economic approach is simply not a methodically recognized method of interpretation.
Rather, the assessment should therefore focus on teleological assessments, which should not be based on Section 1 KschG, but on the respective standard in question.
For the limited partner, this means that he is first and foremost a consumer. Subsequently, the aforementioned teleological considerations must be made and an assessment must be made based on the individual case as to whether the respective standard can be applied or not.
According to the Supreme Court, the prerequisite for such a teleological reduction is, first of all, the limited partner’s relationship to the entrepreneurial regulation in the case of standards that are based on a commercial transaction. In addition, in the case of partnerships, “entrepreneurial treatment in relation to the standard” does not generally occur due to their unlimited liability; rather, the holding of management authority is decisive. This is because it is precisely this management activity that brings with it the business experience which, according to the legislator, should ultimately distinguish the entrepreneur from the consumer.
Finally, it should also be mentioned that the right of moderation under Section 25d KschG provides the judge with a further instrument to bring about an appropriate solution in individual cases, for example in the case of intolerable personal liability.