Doubts arise in particular from the mysterious nature of the "joint and several liability" borne by partners for the partnership’s debts. In this article, we explain what this liability involves.
How is the partners’ liability for the debts of a civil partnership structured? Pursuant to Article 864 of the Civil Code, the partners are jointly and severally liable for the obligations of a civil partnership. Joint and several liability means that a creditor may demand all or part of the performance from all debtors (the partners of the civil partnership) jointly, from several of them or from each of them individually, and that satisfaction of the creditor’s claim by any one of the debtors releases the others. Furthermore, until the creditor has been fully satisfied, all joint and several debtors (in this case, the partners of the civil partnership) remain liable.
Can the rules governing liability for the debts of a civil partnership be changed? The answer is simple: the partners have no right to modify either the scope or the manner in which they are liable for the civil partnership’s debts towards third parties. Importantly, if the civil partnership agreement establishes different rules for the partners’ liability (for example, that only some partners are liable for the debts or that they are liable for them in a specified order), such provisions are invalid. More information on this subject can be found in the article on the joint and several liability of the partners of a civil partnership published on the spolkacywilna.info blog.
The principle of joint and unlimited liability for the debts of a civil partnership cannot be changed with effect towards third parties; however, it may be changed in the partnership’s internal relations and apply exclusively between the partners of the civil partnership. Within the internal relations of a civil partnership, the partners bear equal liability for the partnership’s debts, which is linked to their joint and several liability for those debts. This means that each partner is internally obliged to pay an equal share of the civil partnership’s debts. If one partner covers more than the required share of those debts, they may seek reimbursement of that amount from the other partners (they have a so-called recourse claim against the remaining partners). Unless the partnership agreement provides otherwise, such a partner is entitled to seek reimbursement of the performance rendered in equal parts from each of the civil partnership’s partners.
As lawyer Wojciech Rudzki, the author of the spolkacywilna.info blog, explained to us, "the partners of a civil partnership may change the principle of equal internal liability for the civil partnership’s debts. Article 376 of the Civil Code allows this; paragraph 1 provides that if one of the joint and several debtors has performed the obligation, the content of the legal relationship existing between the co-debtors determines whether, and in what proportions, that debtor may seek reimbursement from the co-debtors". This provision therefore permits the partners to agree that some of them may bear greater or lesser liability for the partnership’s debts than the remaining partners. Moreover, within the partnership’s internal relations, some partners may be released entirely from liability for the debts. However, such changes have no effect on the situation of the civil partnership’s creditors: a creditor may freely choose the partners from whom they will demand payment of the amount due and may also freely determine the extent to which the debt is to be satisfied. In such cases, none of the civil partnership’s partners may invoke the internal arrangements governing liability for the partnership’s debts against the creditor.
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