Germany: The Purchase and Sale of Companies in Germany - Purchase Contract, Asset

Last Updated: 4 December 1997
When specifying the object of sale, a differentiation should be made between assets which are to be included in the balance sheet and those which are not and the intangible assets of the company are also a matter of importance. In the case of companies which prepare individual financial statements, the basis for specifying the assets, rights and obligations to be transferred is initially the balance sheet and the asset register. At the same time, care should however be taken to ensure that only tangible assets are included in the balance sheet and that intangible assets are excluded. This means that certain substantial assets which are to be transferred to the buyer as part of the sale of the company may not be included, or do not have to be included, in the balance sheet. Assets which are not to be shown in the balance sheet particularly include assets held by the seller on the strength of hiring, renting or leading agreements and, in addition, consignment goods or trade debtors originating for a third party account. In view of the fact that the buyer cannot become the owner or legal owner of such assets, other agreements which frequently have to include third parties have to be reached on these as part of the overall asset deal. It is also very important that agreements have to be made on so-called low-cost equipment assets which are not normally included in the balance sheet or which are only included at a notional value as they are written off in full in the year of acquisition. The intangible assets of the company being sold should also be specified in detail. These include, in particular, the specific know-how, customer data files, supplier data files, proprietary rights, copyrights, business documents, etc., acquired by the company being sold. The aforesaid listing is by no means complete and for this reason, it is recommended that it should be established which intangible assets are in existence in each individual case and which are to be transferred.

With regard to the conveyance and transfer of the specified assets of the company being sold, there is the additional problem that the assets in question have normally changed in the event of a deviation between the contract date and transfer date. These changes can be included in the contract by means of an agreement on a joint inventory count by the seller and buyer on the transfer date so that the buyer suffers no disadvantage as a result.

A special situation arises under =A7 25, para. 1, clause 2 of the German Commercial Code (HGB) if the buyer purchases a (sole-trader) company with the right to continue the business. In this case, all amounts due from the individual debtors from trading operations are transferred to the purchaser (buyer). Any other arrangement agreed by the parties is only valid if it is registered in the trade and commercial registry and has been announced or if the amounts due are notified to the third parties by the seller or buyer (=A7 25, para. 3 of the German Commercial Code). In this case, a reimbursement obligation of the buyer can be agreed in the contract for the purchase of the company which commits the buyer to remit any debtor payments received to the seller.

In addition to the assumption of the seller's assets and rights by the buyer, the buyer may also assume liabilities of the seller or enter into contracts or any other legal agreements. If such an agreement forms part of the contract, it must be specified beyond any shadow of doubt in the contract which liabilities of the seller are to be taken over by the buyer and which contractual commitments of the seller are being taken over by the buyer and to whom. With such a contract clause, it is recommended that each of the liabilities should be specified in detail. If the buyer enters into contracts or any other legal agreements of the seller, it is advisable to attach all the relevant contracts and legal agreements to the main contract in order to avoid any dispute on the substance and scope of the agreement. If the buyer is to enter into any contracts or legal agreements, or if liabilities of the company are to be assumed, it should be borne in mind that any agreement on the assumption of debt always requires the consent of the creditor concerned in accordance with =A7 415 of the German Civil Code. If necessary, it should also be checked whether the transfer of contractual rights is excluded by assignment prohibitions.

It is equally important to specify in detail which liabilities the buyer is not assuming. If necessary, the contract can include a generally negative differentiation to the extent that only the contractually agreed commitments, liabilities or any other legal agreements will be assumed by the buyer. If liabilities are assumed by the buyer, attention should again be paid to =A7 25 of the German Commercial Code. If the buyer acquires a company and a right to continue the business which had previously been conducted as a sole trader, the buyer is, by law, liable for all liabilities relating to the company in accordance with =A7 25, para. 1, clause 1 of the German Commercial Code. This ruling applies in the above-mentioned regulation under =A7 25, para. 1, clause 2 of the German Commercial Code which likewise legally specifies the transfers of amounts due from debtors in such a case.

Extreme care should be taken when specifying the assets to be covered by the contract if difficulties are to be avoided with the execution of the contract at a later stage.

For further information please contact Dr Erich Michel, Wessing Berenberg-Gossler Zimmermann Lange, Freiherr-Vom-Stein-Strasse 24-26, Frankfurt am Maim 60323, Frankfurt, Germany- Tel: +496 997 1300, Fax: +496 997 130100.

You may also wish to read through related Wessing Berenberg-Gossler Zimmermann Lange. You can view the entire archive via the Internet on Business Monitor Online (, or via your online provider by entering "Wessing Berenberg-Gossler Zimmermann Lange" and "Business Monitor" as a free text search.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.