General partnership (Switzerland)

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The number of general partnerships has been falling for years.

A general partnership (abbreviation German: KLG, French Société en collectif nom , SNC, Italian Società in nome collettivo , SNC) is in Swiss company law is a legal form of running a commercial enterprise by several individuals . It is therefore a partnership or a so-called legal community - two terms that are used synonymously in Swiss company law.

In practice, the general partnership is often chosen as a legal form by micro and small firms that are run by several people. Restaurants , artisans , law firms, and local trading firms often form a general partnership. As of January 1, 2019, there were 11,395 KlGs in Switzerland.

definition

Art. 552 ORdefines the general partnership as one of two or more natural persons without limitation of their liability for the operation of a commercial, manufacturing or other commercial type of company.

Legal personality

The general partnership is not a legal person and therefore has no legal personality. The bearer of the rights and obligations is not society, but the shareholders. Nevertheless, the general partnership is action- , process- and collection Procedures capable , so it can acquire rights, enter into commitments, in court sue and be sued. Partners have unlimited and joint liability with their private assets (OR 568). In addition, the company is also liable for damages resulting from unlawful acts caused by the shareholders in the exercise of their activities (OR 567).

founding

A general partnership is established by mutually agreeing expressions of will (Art. 1 OR), as this is a contractual relationship. Usually a written partnership agreement is concluded, but there is freedom of form . No share capital is required for the establishment, as the shareholders have unlimited liability and the legislature has therefore seen no need for additional protection for creditors. Unless the articles of association provide otherwise, each partner has to pay the same amount, be it in the form of money, material assets, claims or work. The regulation that only natural persons can be partners in a general partnership is also important for the establishment (Art. 552 Paragraph 1 OR).

commercial register

Every general partnership must be entered in the commercial register in accordance with Art. 552 Paragraph 2 OR . In the normal case of a commercial partnership, the entry in the commercial register only has a declaratory effect. The non-commercial general partnership is a special case: it is treated as a simple partnership until it is registered . The entry in the commercial register therefore has a constitutive effect (Art. 553 OR).

The general partnership, like all companies obliged to enter the commercial register, is subject to accounting requirements (Art. 957 Paragraph 1 OR).

company

The company a general partnership had to kind 947 OR necessarily the family name of at least one unlimited liability and an additive which this holding implies (examples:. & Co. , & Cie. , & Partner ) included. Since July 1, 2016, this is no longer necessary, as only fantasy names are now possible. However, the company suffix general partnership or KlG are mandatory.

Managing directors

In the management of the company, a strict distinction must be made between external and internal relations. Outside ratio is about the extent to which a shareholder the company externally represented through can . This is also called power of representation. Internally, it comes to how he use this power of attorney must . One speaks of power of representation or management in the narrower sense.

External relations

In the external relationship, every partner registered in the commercial register is authorized to represent the company (Art. 563 OR). The scope of the power of representation includes everything that the purpose of the company entails. The Federal Supreme Court interpreted this very broadly in the past and understands it to mean everything that is not outright excluded by the purpose of the company (BGE 116 II 323).

However, the power of representation can be restricted. In order for such a restriction to be effective vis-à-vis third parties, an entry must be made in the commercial register, which only allows two variants of the restriction (Art. 555 OR):

  • Collective representation: The power of representation no longer applies to each individual partner, but to a certain number of them. It is common for two to sign a collective signature.
  • Exclusion: Individual shareholders can be completely excluded from the power of representation.

The prevailing doctrine is of the opinion that the exclusion of all shareholders and the transfer of the entire management to third parties is inadmissible. If the power of representation is to be withdrawn from a partner at a later date, either the consent of all other partners or a judicial decision is required.

Internal relationship

In the internal relationship, the management can be structured as desired. The regulations set out in the statutes are decisive. The legal provisions apply only secondarily, which in the absence of specific provisions are largely based on those of ordinary society.

The optional legal norms provide for the individual management, whereby each partner has the right to lodge his objection before the execution and thus to prevent the action (Art. 535 OR). For legal acts that go beyond the normal operation of the joint business, company resolutions are necessary, which must be passed unanimously (Art. 534, Paragraph 1 OR). If the articles of association only provide for a majority of votes, this is calculated according to persons and not according to any capital that may have been paid in (Art. 534, Paragraph 2 OR).

Financial relationships with the shareholders

Any capital paid in must bear interest. Unless otherwise agreed, the interest rate is 4% (Art. 558 para. 2 OR). The shareholders are also entitled to a fee for their work, which must be contractually determined (Art. 558 Paragraph 3 OR). Both the interest and the fee may be drawn during the year if the articles of association provide for this (Art. 559 and Art. 560 OR) and remain owed even in the event of a loss.

The situation is different with the profit shares, these may only be drawn at the end of the year after the balance sheet has been established (Art. 559 OR). If the capital shares have been reduced due to a loss, profit shares may only be withdrawn again when the capital shares have returned to the original level (Art. 560 OR).

The company's assets are primarily liable for the company's liabilities. However, if the company was dissolved or operated unsuccessfully, the partners are liable for the company's debts on a subsidiary , unlimited and joint basis according to Art. 568 OR . This means that each partner is liable for all debts of the company (jointly) in any amount (unlimited) and that the company's assets are first liable (subsidiary).

Anyone who subsequently joins a general partnership is also liable on a subsidiary, solidarity and unlimited basis for all debts, including those that arose before they joined (Art. 569, Paragraph 1 OR).

If a partner leaves, he is liable for five years as a subsidiary, jointly and unrestrictedly for all debts that arose before his departure (Art. 591 Para. 1 OR)

Change of shareholders

In principle, the same provisions apply to leaving or joining a general partnership as to a simple partnership, but there are some additional standards. If the company is to be continued when a partner leaves, this must have been regulated in advance ( continuation clause ), otherwise the company will be dissolved (Art. 576 OR). Reasons to leave the company are termination, death, exclusion by the judge (Art. 577 OR) and exclusion by the other partners if one of them has gone bankrupt (Art. 578 OR), the last two reasons are specific provisions of the general partnership.

The admission of a new partner is based on the provisions of the simple company and requires unanimity among the partners (Art. 542 OR).

Dissolution and liquidation

The dissolution of the general partnership takes place in accordance with Art. 574 Paragraph 1 OR for the same reasons as the simple partnership and additionally if the company has been declared bankrupt. The provisions on simple partnerships can be found in Art. 545 Paragraph 1 OR and include in particular dissolution

  • if the purpose has been achieved or impossible,
  • when a partner dies,
  • by mutual agreement,
  • by the expiry of the period of time for which the company has been entered and
  • by judgment of the judge if there is an important reason.

After dissolution, the company usually enters the liquidation phase . The company can be terminated without liquidation if one partner takes over all assets and liabilities in accordance with Art. 69 FusG (asset takeover). The company is also dissolved, but not liquidated, if it is converted into a limited partnership or corporation or a cooperative .

The provisions on liquidation are dispositive in nature, so only apply if the articles of association do not contain any provisions. According to Art. 583 OR, the liquidation is carried out by the partners authorized to represent, whereby the judge can recall liquidators and appoint new ones upon request. The liquidators are to be entered in the commercial register.

The liquidators have to terminate the current business, fulfill the obligations of the dissolved company, collect the claims and cash in the company's assets (Art. 585 Paragraph 1 OR). If there is still capital available after the debt has been repaid, the shareholders' contributions are repaid and, if possible, interest is still paid on this capital for the liquidation period. If there is still a surplus, this will be distributed to the shareholders in accordance with the rules for profit distribution (Art. 588 OR).

After completion of the liquidation, the liquidators have to cause the deletion in the commercial register, which, however, is only of a declaratory nature (Art. 589 OR).

See also

literature

Web links

Individual evidence

  1. ↑ Registered companies per legal form and canton. Federal Office for the Commercial Register.
  2. ↑ The general partnership at a glance. Swiss Confederation, accessed on February 4, 2020 .