Sale of rights and obligations of a limited partner and amendment of the partnership agreement

Requirements of a limited partnership agreement in accordance with the Commercial Companies Code

Pursuant to the provisions of Art. 105, points 4 and 5 of the Commercial Companies Code, the limited partnership agreement should include information on the limited partnership sum and contributions of each partner. In the event of a request to adapt the content of the contract to changes in the group of partners, the courts refer to this provision. However, this requirement is misleading because the data included in the contract is historical information, and the current data in this respect is in the register.

Analogy to the procedure for selling shares in a limited liability company.

In this situation, applying an analogy to the procedure for selling shares in a limited liability company seems justified. Pursuant to Article 180 § 1 of the Commercial Companies Code, the sale of shares in a limited liability company requires the conclusion of a written agreement with a notarially certified signature, however, it does not entail the need to modify the partnership agreement. This is despite the fact that, in accordance with the provisions of Article 157 § 1 point 5 of the Commercial Companies Code, the limited liability company agreement must specify the number and nominal value of shares taken up by individual partners.

Case law regarding the transfer of rights and obligations of a limited partner

The lack of need to modify the limited partnership agreement in the event of transfer of rights and obligations of the limited partner is not questioned in the applicable case law – Provincial Administrative Court in Poznań, Judgment of June 6, 2018. I SA/Po 290/18.

Practical aspects of transferring the rights and obligations of a limited partner

In practice, it is important to avoid the need to change the limited partnership agreement in the event of transfer of the rights and obligations of the limited partner. Such a requirement could create significant difficulties related to determining the moment of effectiveness of the change of partner, especially when the agreement on the transfer of all rights and obligations is concluded at a different time than the modification of the partnership agreement. This circumstance, which affects the certainty of the transaction, additionally argues in favor of recognizing the act of disposal of rights and obligations in a partnership as a separate legal act aimed at changing the composition of partners.

Sufficiency of the conditions specified in Article 10 of the Commercial Companies Code. for the effective transfer of rights and obligations

Therefore, it can be concluded that meeting the conditions specified in Article 10 of the Commercial Companies Code is sufficient for the effective transfer of the rights and obligations of a limited partner in a limited partnership.