Liability for obligations in a general partnership. General partnership, its distinctive features and characteristics

21.09.2019

Educational material in the form of legal lectures for self-training of university students of various specialties and areas. The information is presented in the form of notes with a thematic breakdown by subjects and issues being studied.

Rights and obligations of participants in a general partnership

Responsibilities of comrades

1. Unless otherwise provided by the constituent agreement, each partner is obliged to take part in the activities of the partnership.

2. When creating a full partnership, each partner is obliged to pay at least half of his contribution to the share capital of the partnership until it state registration, the rest of the contribution must be made within the time limits established by the constituent agreement; if a partner does not fulfill this obligation in a timely manner, then he is obliged to pay a penalty to the partnership in the amount of 10% per annum, calculated by the amount of his debt, and will also be obliged to compensate for losses to the partnership caused by the untimely repayment of his contribution.

The constituent agreement may provide for other sanctions.

Rights of participants in a general partnership

1. Each partner has the right to participate in the distribution of profit, and the profit is distributed in proportion to the size of the contributions of each of the partners. The constituent agreement may provide for a different procedure for the distribution of profits: for example, depending on the degree of participation in the affairs of the partnership.

2. Each partner has the right to get acquainted with economic and financial information about the activities of the partnership.

3. Each participant has the right to withdraw from the general partnership by declaring his refusal to participate in the partnership no less than 6 months before the actual withdrawal, but only if the constituent agreement was concluded without specifying a period; If the constituent agreement is fixed-term, then early refusal to participate in the activities of the partnership is allowed only by good reason, a list of which must in this case be included in the constituent agreement.

4. Each participant has the right, with the consent of the other participants, to transfer his share in the share capital, or part of this share, to another participant, or even to a third party, both on a compensated and gratuitous basis.

5. All participants are required to bear subsidiary liability for the obligations of the general partnership; a participant who leaves the general partnership continues to bear such subsidiary liability for two years. This two-year period is calculated from the date of approval of the accounting report on the activities of the partnership for the financial year within which the participant left the general partnership.

6. Participants in a general partnership bear independent property liability for those of their debts (obligations) that were not related to their participation in a specific general partnership; in this case, all the property of this participant is subject to possible recovery by its creditors.

Since the property of such a participant is the object of possible recovery by the creditors of the general partnership itself under subsidiary liability, in order to prevent (competition of claims) between the creditors of the general partnership and its personal creditors, a rule has been established according to which, firstly, foreclosure on the share of such a participant according to his own or personal debts are allowed only if there is insufficiency of other property belonging to such a participant; secondly, creditors-collectors have the right to demand from the general partnership to allocate a part of the partnership’s property that corresponds to the share of such a participant for the purpose of foreclosure on him, or payment of the value of this share in in monetary terms. In this case, such value is determined on the basis of the balance sheet, which is compiled at the time of presentation of the relevant claims by creditors.

7. Participants in a general partnership may, by their decision, exclude any of the participants from the composition of the general partnership if the following conditions are met:

- gross violations of their duties by this participant,
- the revealed inability of a given participant to conduct business wisely (if his actions constantly bring only losses to the partnership).

Such a decision must be made unanimously. If a participant voluntarily refuses to leave the partnership, the partnership may file a corresponding claim in court.

8. Losses arising as a result of the activities of the partnership are distributed among the participants in proportion to their contributions; the constituent agreement may establish a different procedure for the distribution of such losses.

9. In case of death individual(participant of the partnership), or in case of reorganization commercial organization(participant of the partnership) their legal successors may enter into the partnership only with the consent of the other participants; in other cases, the successor is paid the value of the share of the former participant; this value is determined according to the balance sheet compiled based on the results financial year, during which the relevant succession took place.

Commentary on Article 75

According to Art. 399 of the Civil Code, this means that the participants in a general partnership bear liability in addition to the liability of the general partnership, which is the main debtor, and the creditor’s claims against them are possible if the claim against the main debtor was not satisfied due to lack of funds.

For the obligations of a full partnership, liability is primarily the property of the partnership itself; the liability of the participants for their personal property is additional, subsidiary, therefore, by virtue of the commented article, foreclosure on property belonging to individual participants can be brought by creditors of the partnership only if at least one of the following conditions is present: actual insolvency of the partnership, recognition of the partnership as insolvent by the court, liquidation of the affairs of the partnership. Direct enforcement of penalties against individual participants without recourse to the partnership is unacceptable. It also follows that the recognition of a general partnership by an insolvent debtor does not entail the mandatory recognition of all partners as insolvent debtors.

Each member of a general partnership jointly and severally bears subsidiary liability to third parties - creditors of the partnership as expressly prescribed by law. As for the internal distribution of responsibility between the members of the partnership, it is determined by agreement of the parties. If the founding agreement of a general partnership does not provide for the internal distribution of responsibility for the obligations of the partnership, then it should be distributed in proportion to the share of participation of each of them in the losses of the partnership. Therefore, a partner who has fully paid the claims made against him for the obligations of the partnership has the right to reclaim (recourse) against the other partners the amount he paid minus the share of responsibility falling on him, i.e., the liability of the participants within the partnership is shared in nature. 2.

The admission of new members of the partnership may be carried out according to the rules and in the manner provided for in the agreement. The law does not establish any restrictions in this regard. The entry of a new member into the partnership should be considered: the admission of a new person to the existing partnership; acceptance of a new participant simultaneously with the retirement of one of the members of the partnership; assignment by one of the members of the partnership, with the consent of the remaining participants, of his right to participate in the partnership to a third party. Since joining a partnership is also entry into all property legal relations of the partnership, the new member of the partnership bears responsibility on an equal basis with the other members of the partnership, i.e. jointly and severally liable for those obligations of the partnership that arose before his entry into the partnership. This rule is not subject to change or cancellation by agreement of the parties. The fact that a new member, when he joined the partnership, did not know about the obligations of the partnership does not relieve him of liability to creditors. 3.

The commented article establishes a shortened statute of limitations for claims brought against the participants of the partnership for their debts (2 years instead of 3 years - Article 196 of the Civil Code). The established 2-year period is calculated not from the date of actual retirement, but from the date of approval of the report on the activities of the partnership for the year in which the participant left the partnership. In relation to third parties, a participant is considered to have left the partnership from the moment the relevant information is entered into the register. For claims by third parties against a participant who has left the partnership, based on a claim against the partnership, a 2-year statute of limitations is established.

The beginning of the limitation period should be considered the day of approval of the report for the year when the participant left the partnership. Upon termination of the partnership, this period must be calculated from the date of approval by the participants or the court of the report submitted by the liquidators. If the creditor's claim is refused due to the expiration of the statute of limitations, subsidiary liability does not apply.

Agreements between the participants of the partnership to limit or eliminate liability provided for by law are void (clause 3 of the commented article).

Article 76. Changes in the composition of participants in a general partnership

Commentary on Article 76

The commented article contains a list of cases that may lead to the termination of the partnership’s activities if the constituent agreement or subsequent agreement of the remaining participants of the partnership does not decide to continue its activities.

The withdrawal or death of any of the partners of the partnership terminates the partnership, unless there are circumstances provided for in Art. 78 Civil Code. Similar consequences are entailed by the recognition of a partnership participant as missing.

A participant recognized as incompetent or partially capable cannot take direct part in the affairs of the partnership (Articles 29, 30 of the Civil Code). A participant declared insolvent (bankrupt), as a person limited in his property legal capacity, is also unable to do this.

With these circumstances, the law connects the need for a special agreement between the participants of the partnership on the continuation of its activities.

The law allows legal entities to participate in a general partnership, but this does not exclude the possibility that reorganization procedures may be opened against them by a court decision, or the liquidation of a participant in the general partnership may take place. legal entity. The occurrence of these events does not entail the termination of the partnership only if the partnership agreement provides for the possibility of continuing its activities.

It should be kept in mind that the agreement must be general. A protest by at least one of the participants makes the agreement of the others invalid. However, if the agreement contains a condition providing that the resolution on the continuation of the partnership's activities can be adopted by a majority vote, then such an agreement will be valid.

Since the share capital of a partnership belongs to it by right of ownership as a legal entity, a creditor for the personal debts of one of the participants does not have the right to foreclose on the property of the partnership. But he can foreclose on the share of the debtor participant in the share capital of the partnership. The participant’s share in the partnership’s share capital should be understood as the participant’s right to receive that part of the partnership property that will be due to him under the division upon liquidation of the partnership’s affairs.

Expulsion of a participant from a general partnership is possible only if there are serious grounds, demands from the remaining participants and a court decision. The law does not provide an exhaustive list of grounds for exclusion. In practice, the interests of the partnership should be recognized as the main criterion; therefore, a gross violation by a participant of his duties or a revealed inability to conduct affairs wisely should be recognized as sufficient grounds for his exclusion. The exclusion of a participant from the partnership is a change in the content of the constituent agreement, therefore the law provides for the consent of all other participants of the partnership. The requirement to exclude a participant from the partnership must be submitted in judicial procedure. Moreover, the plaintiffs in this process are the remaining participants, and not the partnership. A court decision to exclude a participant from a general partnership acquires significance in relation to third parties who are not aware of it only after the changes are entered into the commercial register.

Concept: View business partnerships, whose participants ( complete comrades) in accordance with the agreement concluded between them, engage in entrepreneurial activities on behalf of the partnership.

Features of the institution: The name must “contain either the names (names) of all its participants and the words “full partnership”, or the name (titles) of one or more participants with the addition of the words “and company” and the words “full partnership”.

Owners status: Participants in a general partnership are called general partners and can only be individual entrepreneurs and (or) commercial organizations (they can no longer take part in other general partnerships).

Sources of capital formation: The share capital of the partnership is made up of the value of the contributions made by the partners and guarantees the interests of the creditors of the partnership. By mutual agreement of the participants, contributions to the shared capital can be made both as personal property and non-property rights. The terms for making deposits by each participant are determined by the agreement. General partnership does not have the right to issue shares.

Rights: Receive income in proportion to the contribution to the share capital; participate in the management of the partnership’s affairs; receive information about the activities of the partnership; get acquainted with its accounting books and other documentation in the prescribed manner constituent documents ok; take part in the distribution of profits, receive, in the event of liquidation of the partnership, part of the property remaining after settlements with creditors, or its value; leave the partnership at any time; transfer your share to another PT participant or a third party.

Control Features: Management of the activities of a general partnership is carried out by general agreement of all participants. The founding agreement of a partnership may provide for cases when a decision is made by a majority vote of the participants. Each participant in a general partnership has the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants. When conducting the affairs of a partnership jointly by its participants, the consent of all participants of the partnership is required for each transaction. If the conduct of business is entrusted to one or more participants, the remaining participants, in order to carry out transactions on behalf of the partnership, must have a power of attorney from the participant (participants) who is entrusted with the conduct of business.

Responsibility for obligations: Participants in a full partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership. A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership. A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, equally with the remaining participants, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

Distribution of profits and losses: Profits and losses of a general partnership are distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the constituent agreement.

Main provisions of the charter and constituent agreement: The constituent document of a general partnership is the constituent agreement. The constituent agreement of a general partnership must define: the name of the general partnership; its location; procedure for managing the activities of the partnership; terms of size and composition share capital partnerships; conditions on the size and procedure for changing the shares of each participant in the share capital; conditions on the size, composition, timing and procedure for making contributions by participants; conditions on the liability of participants for violation of obligations to make contributions.

Number of participants: Minimum – 2.

A general partnership is one of the oldest forms of partnerships. Nowadays it is not often used, but some entrepreneurs still prefer it. Those who decide to organize a general partnership, which should be prepared in advance, are advised to familiarize themselves with the rules for registering an organization.

What is a general partnership

A general partnership is one of the types in which the participants enter into an agreement in accordance with business activities. Each participant (or general partner) is fully responsible for the entrusted property, that is, bears unlimited liability.

The Civil Code regulates a general partnership, which is indicated by the following characteristics:

Created on the basis of a contract;

General partners are obliged to personally participate in the activities of the organization;

Have the same rights as legal entities;

The main goal is to carry out business activities;

The liability of all participants is unlimited.

There are rules for those who want to become a member of a general partnership. In law individual entrepreneurs they can become them, like anyone else (according to Article 66 of the Civil Code).

When choosing a name for a general partnership, it should be noted that it must contain the words “full partnership” and the names of all participants, or the names of several participants, but then be sure to add the words “full partnership” or “company”. An example of a general partnership is the imaginary company “Ivanov and Company”.

Required documents

A general partnership, the constituent documents of which must be provided for registration, is created on the basis of a constituent agreement. In it, the founders determine their participation in the activities of the partnership, agree on expenses and methods of managing the organization.

Each participant is required to sign a memorandum of association that contains the following information:

Name that complies with the law;

Location;

The procedure for managing the partnership;

Amount, composition and timing of deposits;

Liability for violation of contract.

The memorandum of association has several purposes. It contains clauses defining the relationship between general partners. Moreover, the agreement specifies the terms of the partnership’s work with other organizations. Like any document, the contract is drawn up in accordance with the law and must include all points. It is in writing, compiled in the form of one document and signed by each participant.

Name of the general partnership

There is no requirement in the law that the agreement must be in the form of a single document. However this required condition when submitting it for registration. Moreover, when presenting the contract to third parties, it is mandatory to show a single document.

From the moment the agreement is signed, the participants in the general partnership must fulfill their rights and obligations. However, for third parties it comes into force only after registration. Registration of the constituent agreement takes place in accordance with the Law on Registration of Legal Entities. The name must comply with all rules. An example of a general partnership with the correct name is “Abzal and K.”

Responsibilities of participants

A general partnership, the constituent documents of which were signed by all participants, imposes rights and obligations on them. This is important to know. Participants in a general partnership cannot be members of more than one partnership. By law, they do not have the right to make transactions on their own behalf without the consent of others. Everyone is required to make at least half of their contribution to the capital by the time the partnership is registered. The remaining portion is paid within the period specified in the contract. Each partner is obliged to participate in the activities of the organization in accordance with the rules specified in the constituent agreement.

Participants' rights

The founders of a general partnership have the right to leave the partnership before the specified period. In this case, the person must declare his desire at least 6 months in advance. If a general partnership was created for a certain period, then exit is possible only for a good reason.

A participant can be expelled from the partnership by court if the other participants vote for it. In this case, he is paid the value corresponding to his share in the capital. The shares of retired participants are transferred by succession, but the remaining partners must vote for the successor. The composition of the comrades can be changed without expelling anyone. In this case, the share in the joint capital is transferred to another participant or a third party. To carry out the operation, the consent of the other comrades is required.

Liquidation of a general partnership

Since a general partnership is highly dependent on each member, there are many events that can lead to its dissolution. Naturally, the death of a partner is the reason for the termination of the partnership. If the partner is a legal entity, its liquidation will serve as the basis for the liquidation of the organization.

Other reasons are:

An appeal by creditors to one of the participants in order to recover property;

Legal proceedings against one of the comrades;

Declaring the participant bankrupt.

A general partnership has the right to continue its activities if such a clause is specified in the constituent agreement.

If the number of partners is reduced to one, then the participant has 6 months to convert the general partnership into economical society. Otherwise, it is subject to liquidation.

What is a limited partnership

General and limited partnerships differ in several respects. A limited partnership, which is also called a limited partnership, differs from a full partnership in that it includes not only general partners, but also investors (limited partners). They assume the risk for losses that are associated with the activities of the partnership. The amounts depend on the deposits made. Limited partners do not participate in business activities. Unlike general partners, investors can be not only individual entrepreneurs and commercial organizations, but also legal entities.

Limited partners have the right:

Receive profit according to the share in the share capital;

Demand annual reports on the work of the partnership.

There are a number of restrictions that apply to depositors. They cannot become government bodies, as well as local governments. They have no right to act on behalf of the partnership, except by proxy.

Production cooperative as a form of collective entrepreneurship

One form of collective entrepreneurship is called a cooperative. A general partnership, in contrast, has more restrictions in terms of participants. Participants in a production cooperative cannot be individual entrepreneurs, but they personally work in the cooperative. Each member has one vote regardless of the size of the contribution.

In the civil code, a production cooperative is called an artel, since profit depends on the labor contribution of the participant, and not on his contribution. In the case of a debt, everyone is responsible for repaying it in an amount predetermined by the charter.

The advantage of this form of entrepreneurship is that profits are distributed in accordance with labor input. Property is also distributed if the production cooperative has been liquidated. The maximum number of members is not limited by law, which allows the creation of cooperatives of any size. Each participant has equal rights and one vote, which stimulates member interest in the activities of the organization.

The minimum number of members is limited to five. The downside is that this greatly limits the possibility of creating a cooperative.

Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership.

An agreement between the participants of a partnership to limit or eliminate liability is void.

A change in the composition of participants in a general partnership does not entail the liquidation of the general partnership, unless otherwise established by the founding agreement of the general partnership.

A change in the composition of participants in a general partnership may be carried out due to:

1) exit of the participant;

2) exclusion of a participant;

3) assignment of a participant’s share to another person;

4) acceptance of a new participant;

5) recognition of the participant as bankrupt;

6) death of a participant, declaring him dead or recognizing him as missing, incapacitated or partially capable, as well as liquidation of a participant - a legal entity.

If one of the participants has left the general partnership, the shares of the remaining participants in the authorized capital of the general partnership change in proportion to the size of their contributions to the authorized fund, unless otherwise provided by the constituent agreement or other agreement of the participants.

A general partnership is liquidated on the general grounds specified in Article 57 of the Civil Code, as well as in the case when the only participant remains in the partnership. The latter has the right, within three months from the day on which he became the sole participant in the partnership, to transform such a partnership into unitary enterprise or to a business company in the manner prescribed by law.

Limited partnerships.

Legal regulation of the formation and activities of a limited partnership is carried out in accordance with Articles 81-85 of the Civil Code

A limited partnership is a partnership in which, along with the participants carrying out activities on behalf of the partnership entrepreneurial activity and liable for the obligations of the partnership with all their property (general partners), there are one or more participants (investors, limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities.

The position of general partners participating in a limited partnership and their responsibility for the obligations of the partnership are determined by the legislation on participants in a general partnership.

A person can be a general partner in only one limited partnership.

A participant in a general partnership cannot be a general partner in a limited partnership.

A general partner in a limited partnership cannot be a participant in the general partnership.

The business name of a limited partnership must contain either the names of all general partners and the words “limited partnership,” or the name of at least one general partner plus the words “and company” and “limited partnership.” If in brand name limited partnership includes the name of the investor with his consent, such investor becomes a general partner.

The rules of the Civil Code on general partnerships apply to a limited partnership, since this does not contradict the legislation on limited partnerships.

A limited partnership is created and operates on the basis of a constituent agreement. The memorandum of association is signed by all general partners.

The memorandum of association of a limited partnership must contain, in addition to general information specified in paragraph 2 of Article 48 of the Civil Code, the conditions on the size and composition of the authorized capital of the partnership; on the size and procedure for changing the shares of each of the general partners in the authorized capital; on the size, composition, timing and procedure for making deposits, their responsibility for violation of obligations to make deposits; on the total amount of deposits made by investors.

The management of the activities of a limited partnership is carried out by the general partners. The procedure for managing and conducting the affairs of such a partnership by its general partners is established by them in accordance with the legislation on general partnerships.

Investors do not have the right to participate in the management of the affairs of a limited partnership. They can act on his behalf only by proxy. They do not have the right to challenge the actions of their general partners in managing and conducting the affairs of the partnership.

All subjects → Civil law. a common part

According to paragraph 1 of Article 69, a partnership is recognized as a full partnership, the participants of which - general partners, in accordance with the constituent agreement concluded between them, carry out entrepreneurial activities on behalf of the general partnership and bear joint liability for all its obligations with all their property in a subsidiary manner.

From this definition signs follow:

- is an association of persons;
- this is a contractual association;
- personal participation in the affairs of the partnership, but on behalf of the partnership itself;
- this is subsidiary liability for the obligations of the partnership, and jointly and severally.

When creating a general partnership, the participants, numbering at least two persons, must have entrepreneurial status, i.e. be either an individual entrepreneur or a commercial organization.

The articles of association of a general partnership must include the names of all participants.

Responsibility of participants in a general partnership for its obligations

In this case, the corporate name of the general partnership must include either the names and titles of all participants, including the words general partnership, or the name or title of one or only several participants with the addition of words and company and also words general partnership. An abbreviated name in the form of the abbreviation PT is allowed.

In a general partnership, as a rule, there is no internal structure. In fact, the only governing body of a general partnership is the general meeting of participants. At the same time, when making decisions at the general meeting, each participant has only one vote; but the constituent agreement may provide for a different ratio of votes of participants. Decision at the general meeting on general rule adopted unanimously; but the constituent agreement may provide that on certain issues a simple or qualified majority is sufficient.

Each participant has the right to make transactions on behalf of the general partnership, and the consent of the other partners is not required; but the constituent agreement may provide for:

- joint management of the case;
- business management can be entrusted to one or several participants;
— each transaction requires the consent of all participants.

If the founding agreement entrusts the management of common affairs to only one or several participants, then other participants can make transactions on behalf of the partnership only if there is a written power of attorney from the authorized participants or participant.

Termination of a general partnership is liquidation, as well as those situations when, as a result of withdrawal from the partnership, or as a result of the death of an individual entrepreneur, or as a result of the reorganization or liquidation of a commercial organization that was a private owner, only one participant remains in the general partnership.

In this case, such a participant must, within 6 months, either transform the general partnership into a business company with one participant, or, after 6 months, make a decision to liquidate the general partnership.

A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, equally with the remaining participants, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

Commentary on Article 75

1. The liability of participants in a general partnership, provided for in the commented article, is mandatory and cannot be changed by agreement of the parties. The liability of the participants in a general partnership is not unlimited, since the law establishes that it is subsidiary. According to Art. 399 of the Civil Code, this means that the participants in a general partnership bear liability in addition to the liability of the general partnership, which is the main debtor, and the creditor’s claims against them are possible if the claim against the main debtor was not satisfied due to lack of funds.

Responsibility of participants for the obligations of a general partnership

It also follows that the recognition of a general partnership by an insolvent debtor does not entail the mandatory recognition of all partners as insolvent debtors.

Each member of a general partnership jointly and severally bears subsidiary liability to third parties - creditors of the partnership as expressly prescribed by law. As for the internal distribution of responsibility between the members of the partnership, it is determined by agreement of the parties. If the founding agreement of a general partnership does not provide for the internal distribution of responsibility for the obligations of the partnership, then it should be distributed in proportion to the share of participation of each of them in the losses of the partnership. Therefore, a partner who has paid in full the claims made against him for the obligations of the partnership has the right to reclaim (recourse) against the other partners the amount he paid minus the share of responsibility falling on him, i.e. The liability of the participants within the partnership is shared in nature.

2. The admission of new members of the partnership may be carried out according to the rules and in the manner provided for in the agreement. The law does not establish any restrictions in this regard. The entry of a new member into the partnership should be considered: the admission of a new person to the existing partnership; acceptance of a new participant simultaneously with the retirement of one of the members of the partnership; assignment by one of the members of the partnership, with the consent of the remaining participants, of his right to participate in the partnership to a third party. Since joining a partnership is also entry into all property legal relations of the partnership, the new member of the partnership bears responsibility on an equal basis with the other members of the partnership, i.e. jointly and severally liable for those obligations of the partnership that arose before his entry into the partnership. This rule is not subject to change or cancellation by agreement of the parties. The fact that a new member, when he joined the partnership, did not know about the obligations of the partnership does not relieve him of liability to creditors.

3. The commented article establishes a shortened statute of limitations for claims brought against the participants of the partnership for their debts (2-year instead of 3-year - Article 196 of the Civil Code). The established 2-year period is calculated not from the date of actual retirement, but from the date of approval of the report on the activities of the partnership for the year in which the participant left the partnership. In relation to third parties, a participant is considered to have left the partnership from the moment the relevant information is entered into the register. For claims by third parties against a participant who has left the partnership, based on a claim against the partnership, a 2-year statute of limitations is established. The beginning of the limitation period should be considered the day of approval of the report for the year when the participant left the partnership. Upon termination of the partnership, this period must be calculated from the date of approval by the participants or the court of the report submitted by the liquidators. If the creditor's claim is refused due to the expiration of the statute of limitations, subsidiary liability does not apply.

Agreements between the participants of the partnership to limit or eliminate liability provided for by law are void (clause 3 of the commented article).

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General partnership

Number of participants

More than two. Participants in general partnerships can only be individual entrepreneurs and (or) commercial organizations.

Share capital

The minimum and maximum size of the share capital is not limited. This is due to the fact that the partners are liable for the obligations of the partnership with all their property.

Purpose of creation

A general partnership is created for the purpose of making a profit and can engage in any activity not prohibited by law. At the same time, for certain types activity requires obtaining a special permit (license).

Controls

Management of the activities of a general partnership is carried out by general agreement of all participants. The founding agreement of a partnership may provide for cases when a decision is made by a majority vote of the participants. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants. Each participant in the partnership, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to familiarize himself with all documentation on the conduct of affairs. Waiver of this right or its limitation, including by agreement of the participants of the partnership, is void.

Each participant in a general partnership has the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants. When conducting the affairs of a partnership jointly by its participants, the consent of all participants of the partnership is required for each transaction.

If the management of the affairs of a partnership is entrusted by its participants to one or some of them, the remaining participants, in order to carry out transactions on behalf of the partnership, must have a power of attorney from the participant (participants) who is entrusted with the management of the affairs of the partnership.

In relations with third parties, the partnership does not have the right to refer to the provisions of the constituent agreement that limit the powers of the partnership participants, except in cases where the partnership proves that the third party at the time of the transaction knew or should have known that the participant of the partnership did not have the right to act on behalf of the partnership

Responsibility of the General Partnership

The partnership is liable for its obligations with all its property. If the company's property is insufficient, the creditor has the right to make a claim against any of the company's participants or all of them at once to fulfill the obligation.

A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership. A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, equally with the remaining participants, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

Constituent documents

The constituent document of the Full Partnership is the constituent agreement signed by all founders. The memorandum of association must contain the following information:

name of the partnership;
location of the partnership;
information on the size and composition of the share capital;
on the size, composition, timing and procedure for making contributions by participants;
liability of participants for violation of the obligation to make contributions.

In the memorandum of association, the founders undertake to create a legal entity and determine the procedure joint activities upon its creation, the conditions for transferring one’s property to it and participating in its activities.

Responsibility of participants in a general partnership.

The agreement also determines the conditions and procedure for distributing profits and losses between participants, managing the activities of a legal entity, and the withdrawal of founders (participants) from its composition.

Conversion of a general partnership

A general partnership may, by decision general meeting participants transform into a partnership of faith, into a society with limited liability, either in Joint-Stock Company, in the manner prescribed by law.

Rights and obligations of participants

A participant in a general partnership has the right to:

participate in the management of the affairs of the partnership in the manner established by the Law and the founding agreement of the partnership;
receive information about the activities of the partnership and get acquainted with its accounting books and other documentation in the manner established by its constituent documents;
take part in the distribution of profits;
withdraw from the partnership at any time, regardless of the consent of its other participants;
receive, in the event of liquidation of the partnership, part of the property remaining after settlements with creditors, or its value.

The constituent agreement may also provide for other rights (additional rights) belonging to a member of the company.

A participant in a general partnership is obliged to:

participate in the activities of the partnership in accordance with the terms of the constituent agreement;
make contributions in the manner, in amounts, in composition and within the time limits provided for by the Law and the founding agreement of the partnership;
not to disclose confidential information about the activities of the partnership;
refrain from making transactions in one’s own interests (or in the interests of third parties) and on one’s own behalf that are similar to those that constitute the subject of the partnership’s activities, without the consent of the other members of the partnership.

The foundation agreement may also provide for other obligations assigned to a participant in the partnership.

The procedure for distribution of profits in a general partnership

The profits and losses of a general partnership are distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the constituent agreement or other agreement of the participants. An agreement to exclude any of the partnership participants from participating in profits or losses is not permitted.

If, as a result of losses incurred by the partnership, the value of its net assets becomes less than the size of its share capital, the profit received by the partnership is not distributed among the participants until the value of net assets exceeds the size of the share capital.

Peculiarities

Full partnership is one of the rare forms of doing business in Russia. It is connected that when using this form of doing business, it is necessary to high level trust between participants. At the same time, in the West, the same or similar organizational and legal forms are more developed. Apparently a longer period market relations taught me to take a more responsible approach to my responsibilities, my partners, and to trust them.

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1. Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

2. A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership.

3. The agreement of the participants of the partnership to limit or eliminate liability provided for in this article is void.