How to change a partner in a civil partnership?

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Subjective changes in the composition of a civil law partnership or commercial law companies constitute a natural part of the broadly understood economic turnover and economic transformations. It is worth remembering how to properly make a subjective change, taking into account applicable law. A civil law partnership is a specific type of partnership, so when making any changes, it is worth considering all activities step by step so that you do not accidentally (ignorance) lead to its dissolution. How to change a partner in a civil partnership? The answer is below.

Civil law partnership - what it is, contract form

Pursuant to Art. 860 § 1 of the Civil Code, by the articles of association, the partners undertake to strive to achieve a common economic goal by acting in a marked manner, in particular by making contributions.

It follows from the above that a civil partnership must have at least two partners. This is indicated by the plural of the word partners.

A civil law partnership does not have legal personality, nor can it be considered an organizational unit specified in art. 331 of the Civil Code. He also has no judicial capacity; it is a multilateral obligation relationship between partners, shaped to achieve a common economic goal (Art. 860 of the Civil Code).

The purpose referred to in Art. 860 of the Civil Code, is implemented with the help of assets, which are the joint property of partners. The features of this property are:

  1. inability to dispose of and satisfy from the share, and

  2. the impossibility of dividing the property during the partnership - gives the character of joint ownership, distinguishing also the property covered by the statutory marital commonality (Article 35 of the Family and Guardianship Code).

As the Court of Appeal in Gdańsk points out in its judgment of October 31, 2017, I ACa1186 / 17: The economic objective should be understood broadly, i.e. as any attempt to obtain material benefits in the form of profit or to achieve the highest, with a given outlay of funds, degree of implementation of the designated property tasks. Therefore, it should be equated with the generally understood motive of rational management in the community, which means obtaining the best effect with maximum savings of resources. Obviously, the pursuit of the economic goal understood in this way manifests itself both in obtaining benefits from the company's debtors for the obligations entered into, and in providing benefits to the company's creditors, i.e. to pay her debts.

The civil law partnership agreement should be concluded in writing. Its essential elements include:

  1. definition of partners - persons or business entities establishing a civil partnership;

  2. the name of the company and its registered office;

  3. specification of a partner's contribution and its value;

  4. the duration of the articles of association;

  5. company representation;

  6. the method of distributing profits and losses;

  7. method of termination of the articles of association.

Method of changing a partner in a civil partnership

As regards the change of partners in a civil partnership, two views can be noted: allowing the sale of all rights and obligations to another partner and excluding the possibility of transferring rights and obligations in a civil partnership.

Pursuant to the resolution of the Supreme Court of November 21, 1995, III CZP 160/95: It is permissible for a new partner to join a civil partnership and take over the existing obligations and rights with the consent of other partners, including those who leave the company at the same time.

However, under Art. 863 § 2 of the Civil Code, prohibiting the sale of rights and obligations by a partner in a civil partnership, the position of the Supreme Court seems doubtful.

In its judgment of February 11, 2008, V CSK 325/08, the Supreme Court stated that: The prohibition on disposing of a share in the joint property of partners refers to the period of the partnership's existence. It should also be assumed that even when a partner resides in the company, this prohibition applies, because the consequence of the withdrawal is the settlement provided for in Art. 871 of the Civil Code.

Therefore, resulting from Art. 863 § 2 of the Civil Code, the prohibition of disposing of a share in the joint property of partners applies to the period of the partnership's existence. Consequently, it should be assumed that if there are two partners in a civil partnership, the occurrence of one of them is tantamount to the end of the existence of the civil partnership.

The legislator, using art. 863 of the Civil Code, with the term "joint property of partners", actually indicated the nature of joint (non-share) ownership between them. This confirms the concept adopted in Polish law, according to which a civil partnership is not a legal entity separate from the partners, but a multilateral obligation relationship between them. The emergence of joint ownership is therefore a normative consequence of concluding a civil partnership agreement. This state lasts as long as the basic relationship lasts and only so that it can fulfill its social and economic role. The rights to the joint property of partners, which are inviolable during the partnership, materialize when the partner resumes (Art. 871 of the Civil Code) or the termination of the partnership's relationship (Art. 875 of the Civil Code). The consequence of these assumptions is the result of Art. 863 § 2 of the Civil Code, it is forbidden to dispose of a share in the joint property of partners.

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Therefore, in order to be able to make an effective and important change of partners in a civil partnership (two-person partnership), the new partner must first join the partnership as a third partner, and then the partner who wanted to leave the partnership may do so in three ways:

  • may terminate participation 3 months before the end of the financial year;

  • terminate the participation with immediate effect (extraordinary circumstances);

  • withdraw from the company by agreement of the parties (partners of a civil partnership).

The partners of the partnership may also specify in the articles of association of the civil partnership the reasons, the occurrence of which may cause the partner to withdraw from the partnership.

A partner's declaration of withdrawal from the partnership may be made in a standard written form. Otherwise, when the joint property of partners includes real estate. In this case, it must be made in writing with a signature certified by a notary.

The change of a partner in a civil partnership (two-person partnership) can be divided into several stages:

  1. accession of a new partner to the partnership - preparation of an annex to the civil partnership agreement in order to "update" the civil partnership agreement to the new status - then the composition of the civil partnership is increased to three partners;

  2. the occurrence of a partner who wanted to terminate the activity in the company, which may occur through:

    a) termination of participation 3 months before the end of the financial year,
    b) termination of participation with immediate effect (extraordinary circumstances),
    c) withdrawal from the company by agreement of the parties (partners of a civil partnership);
  1. changing the articles of association again by drafting an annex in order to "update" the civil law partnership agreement to the new personal status;

  2. notification of changes made in a civil law partnership in the statistical office and the tax office;

  3. payment of tax on civil law transactions - tax on the contribution made by a partner to a civil law partnership.

A partner's withdrawal from the company does not release him from liability for the company's debts that arose before his withdrawal. The existing partner is no longer responsible for the debts incurred after leaving the company.