In passenger companies, unlike capital companies, the employee composition of shareholders is particularly important for shareholders. In personal companies, by default, trading in company shares is treated as an exception rather than a rule. The reason for this is, first of all, to standardise the rules on liability of shareholders for the obligations of a company, which is a personal and unlimited liability.
According to the wording of the provision Article 10(1) k.s.h. all rights and obligations of a partnership partner may be transferred to another person only if the partnership agreement so provides.
The legislator thus expressed the principle of invariability of the composition of the employees of the partnerships, unless the partners themselves excluded this principle in the company agreement.
Therefore, in the absence of a contract of the company to regulate the question of the admissibility of the disposal of all the rights and obligations of the partner, the transfer of the whole rights and obligations of the partner to another person is unacceptable.
For the validity of the contract, no form of notarial act is required. Importantly, this remark also applies when the company owns the property
Conditions for the transfer of the rights and obligations of a partner to a person third
The existing provisions of K.s.h. require that the rights and obligations of the partner may be transferred to the person third fulfillment two conditions provided for under Article 10(1) and 2 k.s.h.
Therefore, in order for such transfer to be possible at all, it is necessary to include the relevant provisions in the articles of association, as already mentioned above. Furthermore, it is necessary to obtain the consent of all other shareholders, unless the articles of association provide otherwise (Article 10(2) k.s.h.).
Therefore, the shareholders may provide in the articles of association that the disposal of all the rights and obligations of the shareholder is permissible without the need to obtain the consent of the shareholders, or that it is necessary to obtain the consent, e.g. provided for in the articles of association of the majority.
Consent should, in principle, be given in writing, which may also be modified by the introduction of appropriate contractual provisions. The requirement of written form is reserved in the regulations of k.s.h. for evidence purposes.
As a result of the conclusion of the contract, the sale of all rights and obligations in a personal company to the buyer of the company's share shall be subject to all transferable rights and obligations under the company's contract.
This applies both to intra-corporate obligations and to the liability of the partner to persons third for participation in the company.
It is worth noting that the obligations of the existing partner in connection with participation in a passenger company and the obligations of that passenger company are jointly and severally shared with the partner joining the company.
For the validity of the contract, no form of notarial act is required. Importantly, this remark also applies when the company owns the property (order of the SN dated 29 June 2011, reference no. IV CSK 473/10). It may therefore be contained in ordinary written form.
The divestiture of the shareholding does not alter the articles of association
It is also worth pointing out that the divestment of the company's shareholding in a personal company and the consequent change in the composition of that company does not constitute a change in the company's contract. Provisions Article 10 k.s.h.
providing for the possibility of a change in the composition of a personal partnership as a result of the transfer of all rights and obligations of a partner in a company of that kind shall not, in any way, refer to the amendment of the company's contract.
(Resolution of the Provincial Administrative Court in Poznań dated 6 June 2018, I SA/Po 289/18). The company does not participate in the sale transaction, but it must inform the registry court of the change in the composition of the partnerships.
The application for registration of amendments to the National Court Register is a cost 350 PLN.
In conclusion, the divestment of the total rights and obligations (share ownership) means the transfer of membership of the company to another person who becomes a partner in place of a shareholder who sells the partnership.
At the same time, it is necessary to distinguish the divestment of the shareholder's shareholding from the shareholder's occurrence, since the buyer replaces and settles the seller's total rights and obligations in the company, while in the event of the shareholder's withdrawal his rights and obligations do not in principle pass to another person and expire.
In such a case, the participating shareholder shall be accounted for with the company in accordance with the wording of Article 65 k.s.h.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.