The problem of joint co-ownership in a Polish civil law partnership constitutes one of the most complex and contentious problems in Polish civil law. On one hand, there are many reasons why a civil law partnership should have legal capacity, capacity to be a party in civil cases, bankruptcy capacity and a status of an entrepreneur. On the other hand, the system of joint co-ownership precludes the partnership from being accorded that status. Recognising the legal capacity of a partnership would mean that it is a carrier of rights and obligations. This, however, would be defied by the system of joint co-ownership, since in that case it would be the partners, as coowners, that would be the carriers of rights and obligations. It is not possible that a partnership and its partners are both carriers of the same property rights; particularly, the right to the property of partnership. Even if the legislature de-cided that a civil law partnership is not just a civil law obligation, but also an organisa-tional unit and that the legal capacity should be accorded to it, then the system of joint co-ownership in a civil law partnership would also have to be waived. Numerous provi-sions of public law, including in particular tax law, suggest such a solution. They already treat a civil law partnership as a legal entity. Accordance of” as the act of granting civil law capacity would unify its status in all areas of law. Furthermore, there are cases from foreign law that speak for the above-presented solution. In France and Scotland a civil law partnership has legal personality. In Germany the equivalent partnership was granted legal capacity. In the latter country, this was possible without the need to resign from the system of community of joint co-ownership (Gesamthand). Contrary to the Polish joint co-ownership, the German Gesamthand is not a type of co-ownership, but a type of legal community of personal rather than property nature. In countries in which a civil law partnership has not been granted legal capacity, problems similar to those that occur in Polish law arise. The postulate of granting legal capacity to a civil law partnership is justified. However, it should be limited to partnerships that operate business activity. Ordinary external partnerships do not require legal capacity; therefore they can still retain the system of joint co-ownership.
joint co-ownership, community of joint ownership, Gesamthand, joint property, property of a partnership, legal community, legal capacity, capacity to be a party in civil cases, bankruptcy capacity, legal personality, carrier of rights and obligations, economic capacity, status of an entrepreneur.
There are two types of co-ownership in Polish ownership relations: co-ownership in fractional parts and joint co-ownership. The former can arise in any legal relationship in which there are joint and indivisible rights to the same movable or immovable item. It is therefore an intrinsic legal relationship, in which shares of co-ownership are defined in fractions and a co-owner has freedom to dispose of them freely. Joint co-ownership however, has completely different characteristics. First of all, it does not exist autonomously, but always within a relationship of another type, under Polish law — in a marriage and a civil law partnership. Second, shares in this co-ownership are not defined by a fraction or any other similar way. Third, neither a spouse nor a partner of a civil law partnership can freely dispose of those shares, which means that he or she cannot dispose of them without the consent of the spouse or of all partners [1].
In the past, existence of joint co-ownership was also adopted in a general partnership and a limited partnership. However, in the year 2000, a new Code of Commercial Partnerships and Companies was introduced in Poland (Act of 15.09.2000 — Code of Commercial Partnerships and Companies (Journal of Laws No. 94 item 1037 as amended.), hereinafter referred to as the CCPC), in which a general partnership, in addition to other commercial partnerships (Currently there are 4 commercial partnerships: those that have existed before — a general partnership and a limited partnership, and new ones — a professional partnership and a limited jointstock partnership), were accorded legal capacity pursuant to 8 § 1 the CCPC. Legal capacity means that those partnerships can be the subjects of rights and obligations. However, those partnerships do not have legal personality. Legal personality must be explicitly granted by a law and then the members of a legal entity are not liable for its obligations with their personal property. In commercial partnerships, due to lack of legal personality, their partners have subsidiary liability for its obligations with their personal property. Since they are carriers of rights, e.g. property right, partners cannot, at the same time, be carriers of rights on the basis of joint co-ownership. Therefore, it is the partnership that is the owner of its property and partners are not its co-owners.
1. Gniewek E. Prawo rzeczowe [Property law], Warsaw 2002.
2. Concise Statistical Yearbook for the year 2013. Available at: http://www.stat.gov.pl/cps/rde/xbcr/gus/RS_maly_rocznik_statystyczny_2013.pdf
3. Gierke v. O. Die soziale Aufgabe des Privatrechts, Reprint Frankfurt 1948, p. 32.
4. Schmidt K. Gesellschaftsrecht, Köln–Berlin–Bonn–München 2002, p. 196.
5. Flume W. Gesellschaft und Gesamthand, ZHR 1972, No. 136, p. 177 et seq.
6. Ulmer P. Gesellschaft bürgerlichen Rechts und Partnerschaftsgesellschaft, Systematischer Kommentar, München 2004, p. 169 et seq., referring to the views of W. Flume.
7. Schmidt K. Gesellschaftsrecht, p. 196 et seq.
8. Wertenbruch J. Die Haftung von Gesellschaften und Gesellschaftsanteilen in der Zwangvollstreckung, Köln 2000, p. 211 et seq.
9. Germain M. Traite de droit commercial, vol. 1, part 2, Les société commerciales, Paris 2002, p. 102.
10. Lic J. Spółka cywilna. Problematyka podmiotowości prawnej. [Civil law partnership. Legal capacity] Warsaw 2013, p. 289 et seq.
11. Cahn A., Donald D. C. Comparative Company Law: Text and Cases on the Laws Governing Corporations in Germany, the UK and the USA, Cambridge 2010, p. 41.
12. Alessi R., Russo D., Quagliotti L. Manuale breve. Diritto commerciale, Milan 2008, p. 736.
13. Vonzun R. Rechtsnatur und Haftung der Personengesellschaften, Basel–Genf–München 2000, p. 231.
14. Krejci H., Gesellschaftsrecht I. Allgemeiner Teil und Personengesellschaften, Wien 2005, p. 29 and 220.
15. Cf. Lic J., Spółka cywilna, p. 578 et seq.
16. Podleś M. Charakter prawny spółki cywilnej na tle prawa polskiego i niemieckiego [Legal nature of a civil law partnership in Polish and German law], Warsaw 2008, p. 247 et seq; Lic J., Spółka cywilna, p. 827 et seq.
17. Podleś M. Charakter prawny, p. 411; Lic J., Spółka cywilna, p. 832.
18. Lic J. Spółka cywilna, p. 828–830.
19. Herbet A. Spółka cywilna. Konstrukcja prawna [Civil law partnership. Legal construct], Warsaw 2008, p. 308.
