Meaning of the loophole


It is commonly known that pursuant to Art. 210 § 1 of the Commercial Companies Code (in joint-stock companies, respectively, Article 379 of the Commercial Companies Code), in a contract between the company and a member of the management board and in a dispute with him, the company is represented by the supervisory board or a proxy appointed by a resolution of the shareholders’ meeting. Failure to comply with this rule results in the sanction of absolute nullity of the act performed. This issue is not subject to discussion and has been confirmed many times in jurisprudence and doctrinal views.

On the basis of art. 210 § 1 of the Commercial Companies Code, there is a specific gap in the law. There is no analogous rule regarding partnerships. In the current legal order, there is no provision that would say that in a contract between the company and its partners and in a dispute between the company and a partner, the company should be represented by an attorney appointed by a resolution of the shareholders.

It is known that in partnerships there is no supervisory board, but there are no obstacles to appointing a proxy.

So where does this lack come from? What was the legislator guided by, ignoring such a significant gap that may lead to a threat to the security and certainty of business transactions, and thus to the loss of security for the interests of partners? Or was this gap left on purpose?

The main difference between partnerships and capital companies is the issue of the legal entity of the companies. A partnership, unlike a capital company, is not based on the capital accumulated by the company, but on a personal basis formed by its partners. Hence, another fundamental difference between the two types of companies – capital companies have legal personality, and partnerships have not been equipped with it. The personality of partnerships is based precisely on the persons who are its partners.

It is in this context that the above-mentioned danger of the lack of a regulation analogous to Art. 210 § 1 of the Commercial Companies Code. The partners are subsidiaryly liable with all their assets for the liabilities incurred by the company. It is therefore important to effectively protect the interests of partners who could be grossly harmed by other partners engaging in activities with themselves for an undefined purpose. This situation appears to be extremely uncomfortable.

We cannot forget about Art. 56 § 1 of the Commercial Companies Code, which orders the partner to refrain from any activity contrary to the company’s interests.

What solution do we find to the above problematic issue? The Commercial Companies Code provides that in cases not covered by its provisions, the provisions of the Civil Code should be applied by analogy. In the Civil Code, we can find Art. 108, according to which the attorney may not be the other party to the legal transaction that he performs on behalf of the principal, unless otherwise stated in the power of attorney or that due to the content of the legal act, the possibility of infringement of the principal’s interests is excluded. This provision is to be applied accordingly when the attorney represents both parties. Therefore, we take the position that in the case of the gap described above in the Commercial Companies Code, Art. 108 of the Civil Code. An activity performed by a partner in a partnership “with himself” will therefore be subject to the sanction of suspended ineffectiveness and will require confirmation, and the resolution of the partners should serve as confirmation.


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