The debtor is a civil law partnership - what then?


What does it mean that the debtor is a civil partnership?

A civil law partnership, taking into account the applicable provisions of civil and commercial law, is the easiest form among commercial companies in terms of establishment, the rules for recovering receivables when the debtor is a civil partnership differ significantly from those that apply to other types of companies. The provisions of the Civil Code will apply. The civil law partnership does not have legal personality, i.e. the partners of the partnership, by signing the agreement, lead to the creation of separate assets, which do not constitute the property of the partnership, but are only owned by all its partners.

What is the joint property of a civil law partnership?

The following should be considered the joint property of partners of a civil law partnership:

  • Everything that the partners contributed as contributions, e.g. money
  • Everything that the company has acquired during its existence, e.g. cars

Enforcement title for all partners of the company when the debtor is a civil partnership?

It should be clearly stated that, having an enforcement title, we have the option of carrying out enforcement from the assets developed by the partners as well as from the individual assets of each partner in the civil law partnership. Such a possibility results from Article 864 of the Civil Code. from which we deduce that all partners are jointly and severally liable for the obligations of a civil partnership with all their property. In other words, if the partnership owes you money, you can claim your receivables not only from the joint property of all partners, but also from the personal property of individual partners of the civil law partnership.

The judgment of the Supreme Court of 28 October 2003 I CK 201/02 also played an important roleSuch a partner is liable jointly and severally with other partners for the obligations arising in the period before the partner's accession to the company, because the act does not differentiate their liability due to the moment of the debt arising. The fact that a partner paid the debt incurred in the period when he was not a partner of the company will only be relevant in settlements with partners who remained in the company at the time the liability arose.

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Can we sue the civil partnership itself?

It should be remembered that when filing a lawsuit, we must sue all partners of the civil law partnership in it, not the company itself. Enforcement title issued to one partner or only some of its partners, only allows for the execution of personal property. If the creditor does not sue all partners, it is tantamount to the inability to obtain an enforcement clause against them. This is due to the aforementioned lack of subjectivity of a civil law partnership.

Two important issues when pursuing claims when the debtor is a civil partnership

  1. A creditor (but only a personal creditor) of a partner in a civil partnership who obtained seizure of the partner's rights in the event of withdrawal from the partnership or its dissolution, has the right to terminate his participation in the partnership for 3 months ahead, even if the partnership was concluded for a specified period of time

  2. In the case of claims related to the activities of a civil partnership, the creditor of the partners may distribute the profit in the future and the future rights of the partner in the event of the partner's withdrawal from the partnership or its dissolution.