Continuation of the trade name (§ 25 HGB)

§ 25(1) HGB provides: whoever acquires an existing commercial business inter vivos and continues it under the previous trade name — even with only a distinguishing addition — is liable for all business liabilities incurred by the previous owner. Prevailing case law applies this liability trap to asset deals out of insolvency as well: what matters is only whether the acquirer continues the trade name, not whether the seller is an insolvency administrator. Buyers who want to keep using an insolvent business's established brand name risk inheriting its legacy liabilities along with it.

§ 25(2) HGB permits a liability exclusion, but it is only effective against third parties if the deviating agreement is promptly entered in the commercial register and published after the takeover — or if the acquirer or seller individually notifies the specific third party. In practice, virtually every insolvency asset deal contract therefore contains an explicit liability-exclusion clause that is promptly filed with the commercial register.

For buyers, checking whether the trade name is being continued and whether the liability exclusion was actually registered — or communicated to known creditors — belongs in the same due-diligence bucket as reviewing the § 613a BGB business transfer: a written assurance in the purchase agreement alone doesn't protect you; what matters is actual publicity in the commercial register after closing.