Pre-foundation liability: According to Section 41 Para. 1 Sentence 2 AktG anyone who acts on behalf of a stock corporation before registering it is personally liable. The liability of the actors requires that the company has already been established but has not yet been entered in the commercial register. According to a ruling by the Fifth Senate of July 12, 2006 ( 5 AZR 613/05 ), the true legal entity is entitled and obligated from a legal transaction if a person acts in the name of a stock corporation or in the name of a stock corporation before the statutes are established (Section 23 AktG). of a stock corporation that is currently being founded, provided that the person acting is authorized accordingly. Otherwise, the person acting is liable according to Section 179 of the German Civil Code (BGB). This corresponds to the case law of the Federal Court of Justice on Section 11 Paragraph. 2 GmbHG, according to which liability of actors is eliminated before the parent company is founded. During this stage, liability is governed by general representation principles. Liability of the representative without power of representation according to Section 179 Para. 1 BGB does not only come into consideration if the representative acts on behalf of a third party without legal or legal power of representation. Based on the case law of the Federal Court of Justice, the Fifth Senate has decided that the provision is to be applied accordingly if someone makes contractual agreements on behalf of a person who does not exist, i.e. the person supposedly represented does not even exist. According to a decision of the Tenth Senate of January 25, 2006 ( 10 AZR 238/05 ), the shareholders of a Vor GmbH can be directly sued if the Vor GmbH has no assets. This can also be the case if comprehensive enforcement proceedings are initiated, but due to insufficient assets in accordance with Section 19 Para. 1 No. 3 GesO in conjunction with Art. 103 a EGInsO has been discontinued and the general enforcement administrator has not included the loss cover claims corresponding to the creditors’ claims. It is unreasonable for the creditor to participate in the general enforcement proceedings if it is objectively certain that satisfaction of his claims is hopeless due to their poor ranking. Even then, there is a lack of wealth. The requirement that a Vor GmbH has no assets must be determined objectively and retrospectively. The Tenth Senate was able to leave open the point at which the lack of assets must have occurred.