Beobachtungs- und Reaktionspflichten der Geschäftsleiter bei aufsteigenden Darlehen und Sicherheiten

The MoMiG has considerably facilitated the granting of upstream loans and securities, which are widespread in group financing practice, with Sec. 30 I 2 Alt. 2 GmbHG and Sec. 57 I 3 Alt. 2 AktG. Subsequently, the BGH (BGHZ 179, 71 and BGHZ 214, 258) required the managers of the company/corporation to continuously monitor the creditworthiness of the shareholder and to react to changes. The thesis examines the problems of capital maintenance law associated with these duties, determines the monitoring and reaction obligations on the basis of legal options and contractual arrangements and presents suggestions on how to minimize liability in practice. Comparisons are also drawn with the financing practice of banks as professional lenders.