According to article 8 of the Polish Code of Commercial Companies and Partnerships registered partnership (as each partnership) may acquire rights in its own name, including the right of ownership of real estate and other rights in rem, incur obligations, sue and be sued. Abovementioned rule grants the registered partnership legal capacity and capacity to enter into legal transactions. Thus, the registered partnership is independent person in civil laws (article 331 of the Polish Civil Code), which acts in economic relations represented by its partners and other representatives. As the registered partnership is separated from its partners and has its own obligations and rights it is possible to transfer the property rights (including the title to a real estate) from the partner’ assets to the partnership’ asset and vice versa. There is no legal rule which would prohibit that kind of acts and there is also no denying that these transactions would breach the principles of social coexistence (or commercial good practices). Under these circumstances, one should conclude that to sell the registered partnership a real estate by its partner is admissible.
However, this rises an issue how a form of representation is presented in that kind of transactions. In a part of Polish Code of Commercial Companies and Partnerships regarding to the registered partnership, there is no provision which could regulate a problem of representation of the partnership in contracts and in disputes between the partnership and its partner. In a companies (spółka z ograniczoną odpowiedzialnoścą – a limited liability company and spółka akcyjna – a joint-stock company) this issue is regulated directly in article 210 § 1 and article 379 § 1 of the Polish Code of Commercial Companies and Partnerships. From this provisions arise, first of all, that these kind of contracts (e.g. selling a real estate to a company by a member of its management board) are admissible. In these contracts members of the management board (a body which is normally entitled to represent a company) could not represent a company. A lack of similar rules for the registered partnership causes that the question of a form of representation of the partnership in a matter of making the legal actions by and between the partnership and its partners is become actual.
In above matter, the Supreme Court has declared that for the purpose of representation of the partnerships in contracts and in disputes with its partner the provisions applicable in spółka z ograniczoną odpowiedzialnością shall also apply to the aforementioned representation in the partnerships, especially article 210 § 1 of the Polish Code of Commercial Companies and Partnerships[1]. This provision stipulates, that “in contracts between the company and a member of the management board and in disputes with him, the company shall be represented by the supervisory board or an attorney-in-fact, appointed under a resolution of the general meeting”. Appropriately applying of above-mentioned provision to the registered partnership means, that in contracts between the registered partnership and its partner and in disputes with him the partnership shall be represented by a proxy appointed by the partners’ resolution. Modification of an order of a provision of article 210 § 1 of the Polish Code of Commercial Companies and Partnerships is resulted from the differences between the structure of a limited liability company and a registered partnership and it explains itself in ignoring the competencies of supervisory board (which does not exist in a registered partnership) and in substituting a general meeting’ resolution with a resolutions of a partners[2]. Certainly, the appropriately applying of article 210 § 1 of the Polish Code of Commercial Companies and Partnerships may not mean full lack of possibility to making an legal action between a partners represented the partnership (whom are in a matter of a registered partnership each of a partners) and a registered partnership. The provision does not exclude that kind of transaction.
A view of applying article 210 § 1 in accordance to the partners of the registered partnership has been criticized by some of the jurisprudence[3]. In a doctrine of laws, it is a prevailing view that for these situations it shall apply appropriately the provision of article 108 of the Polish Civil Code[4], which stipulates, that: “an attorney-in-fact cannot be the other party to a legal act performed on the principal’s behalf unless the power of attorney provides otherwise or, owing to the nature of the legal act, any possibility of the principal’s interest being violated is excluded. This provision applies accordingly if the attorney-in-fact represents both parties”. Unfortunately, a vast majority of jurisprudence does not explain why its appropriately applying shall consist to discussed situation. In these not numerous comments in which an attempt to discuss that problem have been undertaken, its states that “a ban established in article 108 of the Polish Civil Code shall not be interpret in a way which would follow to forbidding the contracts between a registered partnership and its partner in smaller partnerships”[5]. For that reason in the registered partnership which has only two partners and the articles of association provides a requirement of a jointly representation it shall be allowed to establish by both of these partners an attorney-in-fact empowered to enter into a contract with one of these partners. Since article 108 of the Polish Civil Code stipulates that ban of self-dealing does not include a situation in which, owing to the nature of the legal act, it is ruling out the possibility of violaed the partnership’ interest. Howewer “it could not be assumed that a specific kind or type of a legal act, regardless of its actual content, always provide a danger of real violating the principal’ interest”[6]. A possibility of violating the parntnership’ interest is in particular exluded when “each of the other partners agree to enter into a specific contract by a partnership and conciously agree to all its consequances”[7]. Thus, a consent of each partners of a registered partnership for enter into a contract between the partnership and its partner determines the admissibility of that contract.
In a jurisprudence it is being reffered that the admissibility of representing the registered partnership by its partner, who is the second party of the contract, could also arise from the articles of association[8]. The sufficient provision is to “put a model of jointly representation in a two-partners partnership”[9]. For the purpose of avoiding any doubts it is also helpful to put in the articles of association a provision authorising to enter into specific transaction. In that case the articles of association shall describe planned transaction (general exclusion of a ban of self-dealing would be, in authors’ opinion, inadmissible as a contradictory to the nature of the registered partnership – article 3531 of the Polish Civil Code in connection with article 2 of the Polish Code of Commercial Companies and Partnerships). In a light of foregoing statements (in particular due to lack of possibility to infringe an interest of the partnership in which each of the partners have agreed to enter into a contract) above-mentioned change of the articles of association is not necessary.
To summarize, it is worth to point out that, regardless of accepting the view of the Supreme Court about a necessity to appropimately applying article 210 § 1 of the Polsih Code of Commercial Companies and Partnerships or accepting the moist view in jurisprudence about a necessity of appying article 108 of the Polish Civil Code, entering into a real estate sales agreement by a registered partnership with its partner is admissible in case when each partners consent to it.
[1] The Supreme Court in a judgement of 6th February 2013, V CSK 154/12, BSN-IC 2014/10, has claimed that because of that the provisions regulating the registered partnership do not regulate an issue of representation the partnership in a proceeding in which the registered partnership is being suited, the provision of article 210 § 1 of the Polish Code of Commercial Companies and Partnerships shall apply. However, in a judgment of 8th February 2013, IV CSK 332/12, OSNC 2013/10, pos. 117, the Supreme Court has pointed out that: “It is hard to accept a situation in which a partner would has a power to represent a partnership in a contract when being the second party of that contract. The provisions regulating the registered partnership does not include a regulation which could be a foundation to solve this problem. Nevertheless, if the registered partnership is an organizational unit, which admittedly does not have a legal personality, but for which the statutory act gives legal capacity and for which the provisions of legal entities shall apply appropriately, thus the solution of above-mentioned problem is easy to determine. A partner of a registered partnership does not have any power to represent the partnership in a contract by and between that partner and the partnership. For that conclusions the regulation of article 210 § 1 in connection with article 331 of the Polish Civil Code is led. As the situation of a partner of the registered partnership, who represents that partnership and conducting its business, is similar to a situation of a member of the management board of a legal entity, applying appropriately article 210 § 1 of Polish Code of Commercial Companies and Partnerships is firmly grounded”.
[2] The Supreme Court has not explained on what exactly the appropriately applying of article 210 § 1 of the Polish Code of Commercial Companies and Partnerships shall consist. Similar solution to transmitting the provision of article 210 § 1 to the ground of the registered partnership is also represented in the jurisprudence in accordance to a professional partnership; see K. Kopaczyńska-Pieczniak, Problem stosowania art. 210 § 1 k.s.h. odpowiednio lub per analogiam do wspólników uprawnionych do reprezentowania handlowych spółek osobowych, Przegląd Prawa Handlowego, 2014/11, p. 16-17.
[3] J. Krauss, Glosa do wyroku SN z dnia 8 lutego 2013 r., IV CSK 332/12, Glosa 2014/1, p. 41 and next; K. Bilewska, Reprezentacja spółki jawnej w sporze z jej wspólnikiem – glosa – IV CSK 332/12, MOP 2014/10, p. 530 and next; K. Kopaczyńska-Pieczniak, Problem stosowania art. 210 § 1 k.s.h. odpowiednio lub per analogiam do wspólników uprawnionych do reprezentowania spółek osobowych, Przegląd Prawa Handlowego, 2014/11, p. 15 and next.
[4] M. Saczywko, Zakaz dokonywania czynności „z samym sobą” a reprezentacja spółki jawnej w umowach ze wspólnikami, PPH 2012/11, p. 53 and next, J. Bieniak, M. Bieniak, G. Nita-Jagielski, Kodeks spółek handlowych. Komentarz. Wyd. 4, Warszawa 2015, A. Kidyba [in:] Komentarz aktualizowany do art. 1-300 Kodeksu spółek handlowych. Komentarz do art. 29, System Informacji Prawnej LEX, 2017; S. Sołtysiński [in:] Szajkowski, System Prawa Prywatnego, vol. 16, 2008, Nb 182, p. 815
[5] M. Saczywko, Zakaz dokonywania czynności „z samym sobą” a reprezentacja spółki jawnej w umowach ze wspólnikami, PPH 2012/11, p. 56
[6] L. Moskwa, Stosunek zewnętrzny spółki komandytowej w świetle przepisów kodeksu handlowego i kodeksu spółek handlowych (studium materialnoprawne), Poznań 2000, p. 47
[7] M. Saczywko, Zakaz dokonywania czynności „z samym sobą” a reprezentacja spółki jawnej w umowach ze wspólnikami, PPH 2012/11, p. 56
[8] S. Sołtysiński, [in:] Szajkowski, System Prawa Prywatnego, vo. 16, 2008, Nb 182, p. 815
[9] B. Borowy [in:] Jara (red.) Kodeks spółek handlowych. Komentarz do art. 29, System Informacji Prawnej LEGALIS, 2017
