A partnership ( Latin societas , "society") is an amalgamation of two or more natural persons ( sozien ) for joint professional practice . It is a partnership , namely a partnership under civil law according to § ff. BGB . The law of the Partnership Company Act (PartGG), which differs from this , does not apply to the GbR as a partnership. Important this distinction is for requiring entry into the partnership register and the power of representation .
In educational language , society is an expression for societies or communities in the general sense.
In a law firm (the oldest still existing German law firm dates from 1822), two or more lawyers combine to form a company (GbR) for joint professional practice. It differs from the office community through the establishment of the GbR under company law and the common external appearance. A mandate is usually given to the law firm by the client, not to the individual lawyer (unless the individual mandate agreement is with the lawyer as an individual). This is particularly important for liability, because when a partner takes on a mandate to the firm, all lawyers who belong to the firm (or who will be part of the firm in the future) are always liable.
The partners of a partnership are the actual owners of the partnership and can therefore make decisions about it like company owners. The law firm can also have so-called external socia, which are listed by name on the practice label and the firm's letterhead (nominal socia). Internally, however, external societies are employees of the sole proprietor or the partners who de jure have no say in internal company matters due to a lack of shareholder status and de facto , but are fully liable under civil law and possibly also tax due to legal liability.
The freelancer of a pseudo- law firm is liable in full if he has given the legal appearance to be a member of the (pseudo) law firm and has not acted dutifully against the legal form set in this way.
The partnership is created through the articles of association . Since the partnership is not and cannot be entered in a register, it is often disputed - also between the alleged shareholders and the authorities as well as the business partners - whether and with whom and by when a company was expressly or implicitly founded. To avoid problems, a written partnership agreement is always useful.
Right of representation
If there is no written contract, there is general representation in accordance with German Civil Code. The partnership is represented jointly by all partners. This assumes that the person acting acts on behalf of the partnership and has power of representation. If the partnership is in the process of being dissolved (iL), then, even in the case of a different contract, full representation applies again, unless a separate regulation by appointing the liquidator is included in the contract.
Contractual partner under civil law
The company (partnership) only becomes a contractual partner if it has been properly represented. If there is general representation, the partnership has not been represented if only one partner a) acted in his own name b) had no consent to represent the partnership. Then he owes himself as a falsus procurator . Design rights such as B. Terminations in the tenancy or employment relationships must be declared jointly by all partners (by the general representative). Otherwise they are incurably ineffective until a new formal notice has been given.
The partnership is an entrepreneur within the meaning of UStG . It is entitled to deduct input tax if and to the extent that the incoming invoices are made out to the firm. Buys z. For example, if a member of the law firm has a car in his own name, the law firm is not entitled to deduct input tax. This very common mistake is known as the “law firm trap”.
- Martin Henssler, Michael Streck (eds.): Handbuch Sozietätsrecht . 2nd Edition. Otto Schmidt, Cologne 2011, ISBN 978-3-504-18061-4 .
- Bernd Hirtz: A law firm is not a law firm either . In: New legal weekly . tape 65 , no. 49 . CH Beck, 2012, ISSN 0341-1915 , p. 3550-3553 .
- Michael W. Stehmann: Employment relationships among lawyers, civil, labor and professional law problems . University of Cologne, Cologne 1989, DNB 900148446 (dissertation).
- Eberhard Assmann: Sales tax problems with lawyer and notary partnerships . In: Zeitschrift für die Anwaltspraxis (ZAP) . Subject 20: Tax Law. ZAP-Verlag Wolters Kluwer Germany, ISSN 0936-7292 , p. 361-376 .
- Kamps, Alvermann: External and bogus law firms of freelancers. Avoidance of tax disadvantages through correct design . In: Sales Tax Advisor (UStB) . Otto Schmidt, 2001, ISSN 1439-6777 , p. 281-286 .
- Markworth, David: Scheinsozius and Scheinsozietät - the effects of the legal certificate in GbR and PartG . Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28742-7 (dissertation).
- Entry of the partnership in the online dictionary . Retrieved December 5, 2017.
- Wilhelm Treue : Legal, economic and tax advice in two centuries . 3. Edition. Esche Schümann Commichau , Hamburg 1997, ISBN 3-00-001424-1 .
- cf. BGH IX ZR 44/10
- cf. BGH II ZR 56/02 , NJW 2003, 1803
- See in detail on the nominal partner or the apparent person: Michael Stehmann: Employment relationships among lawyers, civil, labor and professional law problems. Dissertation Cologne 1988; Volker Posegga: DStR. 2013, p. 611.
- OLG Hamm, judgment of September 28, 2010, 28 U 238/09, 1-28 U 238/09, NGZ 2011, 137
- Volker Posegga: The liability of the members of a freelance law firm . In: German Tax Law (DStR) . CH Beck, 2013, ISSN 0949-7676 , p. 611 .