ELJ_2014-2_:press
2015.11.09.
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RULES ON PARTNERSHIP IN THE NEW HUNGARIAN CIVIL CODE OF 2013
9 Claim against Partner of the Partnership for the Contribution The provision of the capital contribution undertaken by a partner in the articles of association of the partnership may be claimed by any and all other partners [S 6:501 (1) 1st sentence]. Since no separate legal entity is created under the articles of association, the obligee of this claim in such cases is always the community of partners, the interests of which may be enforced by any of the partners. This rule is a mandatory provision of the Code, meaning that a partner may not be deprived of their right to demand performance of the obligation to provide the capital contribution undertaken by any other partner in the articles of association. [S 6:501 (1) 2nd sentence]. The essence of this rule is that the possibility of a partner to take action to enforce the provision of the capital contributions is not limited to their own share, but – without any further authorisation or power of attorney – may also be to protect the interests of the other partners.
XI Protection of the Contractual Purpose With regard to the obligations of the partners of the partnership, the Code prohibits the partners from taking any action that may jeopardise the success of the common activities or the achievement of the common contractual purpose of the partnership. The partners agree with each other in a contract to pursue the common activity. This contractual undertaking implies a duty of cooperation and a duty of actual performance, as well as a duty to refrain from any and all activities that may jeopardise the common activities or the achievement of the common purpose. If a partner breaches those rules – rooted in loyalty, based on fair cooperation and set forth in the articles of association of the partnership – they may be called up to perform such obligations by any of the partners. The general rules of the breach of the contract are applicable for partnerships as well. Those rules are also redrafted in the new Code.
XII Share of Profits and Losses 1 The Rules on Share of Profit and Loss and the Rule of Societas Leonina According to the default rules of the Code, the profit and loss generated by the common activities of the partners are to be borne by the partners in proportion to their capital contributions [S 6:502 (1)]. The meaning of this provision is twofold: it applies to the increase and reduction of the joint assets, as well as to the changes to the assets of the partners. A partnership has, or may have, initial assets provided by the partners; the losses can be construed as the reduction of those initial assets, and the partners may also incur additional debts. As such, the reduction of assets affects the joint assets as well as the private assets of the partners in the proportion specified in the articles of association. However, a capital increase means only the increase of the jointly held assets of the partners, and it is to be divided in proportion to the capital
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