With regard to partnerships, the list includes, amongst others, a general partnership; the Act does not explicitly stipulate a requirement for two partners. However, bearing in mind the provisions of Article 22(1) of the Commercial Companies Code in conjunction with Article 3 of the Commercial Companies Code, it must be concluded that a general partnership must have at least two partners at the time of its formation, and its establishment by a single partner is not permitted.
Nevertheless, it should be noted that single-member general partnerships do exist in commercial practice, although they are not established in the first instance, but as a result of a series of events and decisions taken during their operation, i.e. in a secondary and transitional manner. The grounds for reducing a general partnership to a single-member status are primarily to be found in Article 58 § 1(4) and (5) of the Commercial Companies Code, i.e. the grounds for the dissolution of a general partnership, which include, amongst others, the death of a partner or the declaration of their bankruptcy, or the termination of the partnership agreement by a partner or a partner’s creditor. In the event of the death of one of the two partners in a general partnership, the deceased partner’s heirs do not automatically take their place ex lege, as such a circumstance must be regulated in advance in the partnership agreement. The situation is similar in the event of termination of the partnership agreement by one of the two partners.
Although the above leads to the dissolution of the partnership, this dissolution does not automatically result in the partnership being struck off the National Court Register (KRS) or the cessation of its legal existence, as the partnership must first be wound up. The grounds specified in Article 58 of the Commercial Companies Code lead to the dissolution of the company, but do not result in the company being dissolved, as situations may still arise during the liquidation proceedings that allow the company to continue conducting its business activities. This is also reflected in the Supreme Court’s judgment of 27 June 2017 ref. no. II CSK 595/16, in which the Supreme Court ruled that the emergence of a single-member status is merely a cause for the dissolution of the company, which consequently means that the last shareholder is obliged to conduct liquidation proceedings and, following this, to submit an application for the company’s removal from the National Court Register. However, before the company’s legal existence ceases upon its removal from the register, there may be situations in which it continues to operate with a single partner. The Supreme Court has further held that where the ground specified in Article 58 § 1(5) of the Commercial Companies Code arises, a general partnership becomes a single-member company. The Supreme Court notes that this situation is permissible and desirable, primarily in order to conclude the company’s ongoing affairs and make final settlements.
Furthermore, in light of Article 66 of the Commercial Companies Code, which provides that if, in a partnership consisting of two partners, a ground for dissolution arises on the part of one of them, the court may grant the other partner the right to take over the partnership’s assets with the obligation to settle accounts with the departing partner in accordance with Article 65 of the Commercial Companies Code. The above indicates the possibility of dissolving the company without carrying out its liquidation; however, the court’s ruling ex lege does not result in the company’s removal from the National Court Register. Therefore, between the court’s ruling and the company’s removal from the register, it will operate as a single-member general partnership for an indefinite period.
Furthermore, the literature indicates that a single-member general partnership cannot arise as a result of the transfer of all the rights and obligations of one partner in a two-member partnership to the other, as this would lead to the deliberate creation of a single-member partnership, which is not provided for in the legislation.
To summarise the above, in the light of the provisions of the Commercial Companies Code and legal doctrine, it must be accepted that a single-member general partnership may exist in commercial transactions, but this is an exceptional, atypical situation arising secondarily as a result of actions taken by the partners. The fulfilment of the grounds for the dissolution of a general partnership under Article 58 § 1(4) and (5) of the Commercial Companies Code does not, in fact, result in its automatic dissolution and removal from the register, but leads to the opening of liquidation proceedings, during which the task of the remaining, sole partner / liquidator is to collect receivables, fulfil obligations and realise the partnership’s assets (Article 77(1) of the Commercial Companies Code).
J. Lic, General Partnership. Commentary, Warsaw 2023, Legalis
She specializes in civil, commercial and business law. In the corporate and energy department, her activities are mainly based on providing corporate services to companies, reviewing and preparing commercial contracts, drafting litigation and non-litigation pleadings and preparing analyses and legal opinions, particularly in the sphere of business law and energy law. She also has professional experience in administrative and civil proceedings, which she gained in Warsaw law firms. She supports the Firm's…
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