General Partnership
Explanation
A general partnership (Société en nom collectif) is a commercial company that operates under a specific name or title. This company consists of two or more persons. The main characteristic of this company is that its partners are personally and jointly and severally liable (la solidarité) for all the company's debts.
The memorandum of association (l'acte constitutif) of the company can be official or under private signature. If the partners choose a private signature, the law requires writing copies of the memorandum of association equal to the number of partners, so that each partner receives a copy.
Registering and publishing the company is an essential matter. If the partners fail to deposit the memorandum of association at the court registry or do not register it in the commercial register (Registre du Commerce), this leads to the nullity of the company (nullité de la société). In this case, all partners become jointly and severally liable if damage is caused to third parties.
For the protection of third parties, any provision that concerns third parties and is not mentioned in the deposited company's articles or in the summary of the commercial register is considered unenforceable against interested parties (inopposable aux tiers). Likewise, the failure to publish any amendments made to the company's deed makes these amendments unenforceable against third parties.
The nullity resulting from the lack of publication does not lapse with the passage of time. Any interested person has the right to claim this nullity. However, the law prevents the partners themselves from invoking this nullity to evade their obligations towards third parties. If the situation is corrected and the publication is carried out late, only the persons who contracted with the company before the correction have the right to invoke the nullity.
Official legal articles
Think deeper
Why does the law prevent partners from invoking the nullity of the company resulting from the lack of publication against third parties, while allowing third parties to invoke it?
Flashcards
What is the nature of a partner's liability in a general partnership for the company's debts?
The partners are personally and jointly and severally liable for the company's debts.
How many copies are required if the memorandum of association of a general partnership is under private signature?
Copies of the deed must be written equal to the number of partners.
What is the penalty for failing to deposit the memorandum of association at the court registry or not registering it in the commercial register?
It leads to the nullity of the company and makes all partners jointly and severally liable when damage is caused to third parties.
Does the nullity arising from the lack of publication lapse with the passage of time?
No, the nullity arising from the lack of publication does not lapse with the passage of time.
Do the partners have the right to invoke the nullity of the company resulting from the lack of publication against third parties?
No, the partners may not invoke this nullity against third parties.
What is the effect of failing to publish the amendments made to the company's deed?
It makes these amendments unenforceable against third parties.
Practice questions
A general partnership was established by a deed under private signature between 4 partners. How many copies of the memorandum of association must be drafted?
The law requires writing copies equal to the number of partners if the deed is under private signature (Article 47).
The partners failed to deposit the memorandum of association of the general partnership at the court registry. What is the legal effect of this?
Failure to deposit leads to the nullity of the company and makes the partners jointly and severally liable when damage is caused to third parties (Article 51).
Can the partners in a general partnership invoke the nullity of the company resulting from the lack of publication to evade their obligations towards third parties?
The law explicitly prevents the partners from invoking the nullity arising from the lack of publication against third parties (Article 52).
A general partnership amended its memorandum of association but did not publish this amendment. What is the fate of this amendment?
Failure to publish amendments makes them unenforceable against third parties (Article 51).
The general partnership delayed in carrying out the publication procedures, then corrected the situation and published the deed. Who has the right to invoke the nullity in this case?
The right to invoke nullity after late publication procedures is restricted to those who contracted with the company before the correction exclusively (Article 52).
Case problems
Samir and Walid agreed to establish a general partnership. They drafted the memorandum of association under private signature in a single copy kept by Samir. The company began its operations without depositing the deed at the court registry. Fadi contracted with the company, and when he claimed a due debt, Walid invoked that the company is null due to lack of registration and Fadi cannot claim from him personally.
Model answer
Samir and Walid violated the law requiring copies of the private signature deed equal to the number of partners (Article 47).
The failure to deposit the founding deed at the court registry leads to the nullity of the company (Article 51).
Walid, as a partner, cannot invoke this nullity against Fadi to evade liability (Article 52).
Walid remains personally and jointly and severally liable for the company debts towards Fadi (Articles 46 and 51).
Self-grading rubric
A general partnership is duly registered. The partners later agreed to amend the company deed to restrict the manager's powers, but they did not publish this amendment. The manager concluded a contract with a supplier that exceeds his amended powers. The company refused to pay the contract value on the pretext that the manager exceeded his powers mentioned in the amendment.
Model answer
The failure to publish the amendments made to the company deed makes them unenforceable against third parties (Article 51).
Since the company did not publish the amendment restricting the manager's powers, it cannot invoke it against the supplier.
The contract is considered enforceable against the company, and it is obligated to perform its obligations.
The company and its partners are personally and jointly and severally obligated to pay the contract value to the supplier (Article 46).