Civil law. A special part. Simple partnership agreement (the most important)

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Civil law. A special part. Simple partnership agreement (the most important)

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Topic 18. SIMPLE PARTNERSHIP AGREEMENT

In accordance with paragraph 1 of Art. 1041 of the Civil Code, under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law. Based on this definition, the following conditions are essential for a simple partnership agreement: on the combination of contributions; about joint actions of comrades; about the common goal for the achievement of which these actions are carried out.

By its legal nature, a simple partnership agreement is consensual, reimbursable, mutual and fiduciary.

The common goal of comrades can be both commercial and non-commercial in nature (making a profit, building a residential building for comrades, creating a legal entity, etc.).

The contribution of a friend is recognized as everything that he contributes to the common cause, including money, other property, professional and other knowledge, skills and abilities, as well as business reputation and business connections. The partners' contributions are assumed to be equal in value, unless otherwise follows from the simple partnership agreement or actual circumstances. The monetary value of a partner's contribution is made by agreement between the partners (Article 1042 of the Civil Code).

The property contributed by the comrades, which they possessed by right of ownership, as well as the products produced as a result of joint activities and the fruits and incomes received, are recognized as their common shared property, unless otherwise established by law or agreement or does not follow from the nature of the obligation. The property contributed by the comrades, which they possessed on other grounds, is used in the interests of all the comrades and, along with the property in their common shared ownership, constitutes the common property of the comrades. The obligations of partners in maintaining common property and the procedure for reimbursement of expenses associated with the fulfillment of these obligations are determined by a simple partnership agreement (Article 1043 of the Civil Code).

Since the simple partnership agreement is of a fiduciary (personal trust) nature, a partner cannot transfer (assign) his right to participate in the agreement to other persons without the consent of the other partners. In the presence of such consent, the remaining participants in the simple partnership agreement have the pre-emptive right to purchase the share of the retiring participant in common property (Article 250 of the Civil Code).

The creditor of a participant in a simple partnership agreement has the right to present a claim for the allocation of his share in the common property in order to levy collection on it for the debts of this participant. However, the participant's share in the common property of the partnership can be used to pay off his personal debts only if his other property is insufficient, i.e. in a subsidiary order (Article 255, 1049 of the Civil Code).

As a general rule, any subjects of civil law can be participants in a simple partnership agreement. However, only individual entrepreneurs and (or) commercial organizations can be parties to such an agreement concluded for the implementation of entrepreneurial activities (clause 2 of article 1041 of the Civil Code).

The form of a simple partnership agreement must comply with the general requirements of the legislation on the form of transactions (Articles 158 - 165 of the Civil Code).

When conducting common affairs, each partner has the right to act on behalf of all partners, unless a simple partnership agreement establishes that the conduct of business is carried out by individual participants or jointly by all participants in such an agreement. When doing business together, each transaction requires the consent of all partners. In relations with third parties, the authority of a partner to make transactions on behalf of all partners is certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement made in writing.

A partner who has made transactions on behalf of all partners without proper authority or on his own behalf may demand compensation for expenses incurred by him at his own expense, if there were sufficient grounds to believe that these transactions were necessary in the interests of all partners. Partners who have suffered losses as a result of such transactions have the right to demand their compensation.

Decisions relating to the common affairs of comrades are made by comrades by common agreement, unless otherwise provided by a simple partnership agreement (Article 1044 of the Civil Code).

The procedure for covering expenses and losses associated with the joint activities of partners is determined by their agreement. In the absence of such an agreement, each partner shall bear the costs and losses in proportion to the value of his contribution to the common cause. On the contrary, as a general rule, the profit received as a result of the activities of a simple partnership is distributed in proportion to the value of the partners' contributions. Another procedure for its distribution may be provided for by a simple partnership agreement or other agreement of partners.

Agreements that completely exempt from participation in covering common expenses or losses or eliminate one of the partners from participation in profits are void (Articles 1046, 1048 of the Civil Code), as contradicting the essence of this obligation.

The nature of the liability of partners depends on the type of contract concluded. If a simple partnership agreement is not related to entrepreneurship, each partner is liable for general contractual obligations with all his property in proportion to the value of his contribution to the common cause, i.e. bears a shared responsibility. For common obligations arising not from the contract, the comrades shall be jointly and severally liable. Participants in a simple partnership established to carry out entrepreneurial activities bear joint and several liability for all common obligations, regardless of the grounds for their occurrence (Article 1047 of the Civil Code).

According to Art. 1053 of the Civil Code in the event that a simple partnership agreement was not terminated as a result of a statement by one of the participants to refuse further participation in it or termination of the agreement at the request of one of the partners, the person whose participation in the agreement has ceased is liable to third parties for general obligations that arose during the period of his participation in the agreement, as if he remained a participant in a simple partnership agreement.

The law provides for the grounds for terminating a simple partnership agreement (clause 1, article 1050 of the Civil Code). Any partner has the right to refuse an open-ended simple partnership agreement by notifying the other participants about this no later than three months before the proposed withdrawal from the agreement. An agreement on limiting the right to withdraw from such an agreement is void (Article 1051 of the Civil Code).

The right to freely withdraw from the membership of the participants in a simple partnership agreement may be limited by agreement of the partners, if the agreement is concluded for a certain period. However, along with the grounds specified in paragraph 2 of Art. 450 of the Civil Code, a party to a simple partnership agreement concluded with an indication of a term or an indication of the purpose as a resolutive condition, has the right to demand termination of the agreement in relations between itself and other partners for a good reason with compensation to other partners for real damage caused by termination of the agreement (Article 1052 of the Civil Code ).

Termination of a simple partnership agreement entails the division of property that was in the common ownership of the participants, and the common rights of claim that arose from them in the manner prescribed by Art. 252 GK.

A partner who has brought an individually defined thing into common ownership shall have the right, upon termination of the contract, to demand in court that this thing be returned to him, provided that the interests of other partners and creditors are observed. Items transferred for common possession and (or) use shall be returned to the participants who provided them without remuneration, unless otherwise provided by agreement of the parties.

From the moment of termination of the simple partnership agreement, its participants bear joint and several liability for unfulfilled general obligations in relation to third parties (paragraph 2 of article 1050 of the Civil Code).

A simple partnership agreement may provide that its existence is not disclosed to third parties (tacit partnership) (Article 1054 of the Civil Code).

Author: Ivakin V.N.

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