"NEWS July 28, 2016-limited partners and general partners: the boundary of the acts of management"

Posted by on Jul 28, 2016

The limited partnership company also stands out thanks to the figure of the limited partners, who, like the civil code, article enshrines 2320 cannot perform acts of administration, nor treat or do business in the name of the company, except in accordance with special power of Attorney for individual business. The limited partner who contravenes the ban assumes unlimited liability towards third parties for all social bonds and can be excluded in accordance with article 2286. This provision takes relevance within the corporate discipline, because it represents the ratio of the Fund, according to the judgment of the Court of Cassation 29794 of 2008, where it is stated the presence within the norm of the principle of typicality place by article 2249 cod. CIV., through which are guaranteed by the company limited partnership its essential features, most notably the conferibilità only to partners of the directors of the company, assumption and effect of their unlimited liability for social bonds.

Gani also delineate the concept of meddling with the aid of the law. In the judgment of the Court of Cassation No. 11250 of 2016, in fact, about the same, it is stated:

  • the need to engage in an activity advisors;
  • This activity takes the form of operations in effect within the company or to be reflected outside;
  • the same expresses the power of direction of Social Affairs, since it is a choice which belongs to the owner of the company.

The ruling goes on to say: "it follows that the limited partner assumes unlimited liability for social bonds within the meaning of that article 2320 cod. CIV., unless contrary to the prohibition of administrative acts (the latter which acts, having decisive influence or at least with the directors of the company, not by acts of mere order or executives) or to treat or do business in the name of the company ".

After the study so far, wants to bring the case contained in the decision of the CTP n. 5637 del 6/27/2016. The applicant had been appointed a limited partner of a partnership, a position from which it was withdrawn through a private agreement. The Agency notified an additional assessment at the company and at the same to issue an invoice for transactions that do not exist. The former limited partner thus defended himself, given the presence of the withdrawal, including the non-imputation of any kind of relationship with the company. Well, aside from the Union on the propriety of the medium used to transfer quota, namely private writing, in this House we have tried so far to understand what are the acts of which the limited partner is required to respond. Among the reasons for the decision, in fact, he considers it essential to confirm the nature of the shareholder, that is to say that the same is the title of a limited partner, and then, the company has no decision-making power and representation, why all this belonged exclusively to the general partner. Relevant is the next period, "because in the present case, there is the issue of an invoice for transactions do not exist, then the liability of such fact is due solely to the general partner and the limited partner, not because the latter has no strength in the shareholder structure. The limited partner cannot be treated the same way as the general partner, which has representation and the responsibility of the company ".

By way of example, moreover, the Court of Como of 2/11/1987, although not recently issued, States that it is an act of administration, if it is done by the limited partner does not have a special power of Attorney, the mere signing of orders for supplies of goods.

by Clare Raghuram and Sandro Cerato