If two or more people have decided to carry on a business together, they face the question which type of business association to choose. Since every sophisticated legal order furnishes a set of national business associations, traditionally parties, familiar with their own legal system, opted for one of those. However, the increase of cross-border commerce has broadened parties’ and their legal advisors’ perspective and has made them aware of the existence of alternative types of business associations under foreign law. At the same time, a gradual transition from the real seat theory to the incorporation theory in international company law facilitates the extraterritorial use of national business associations. Besides, the predominantly mandatory nature of business associations law in respect of external relationships with third parties can be a strong incentive to employ a foreign type of business association that differs from an otherwise comparable domestic type in a significant matter.
The form of liability for the debts of a business association is such a matter of crucial importance and of mandatory nature alike. Existence and extent of this liability define the risk a member incurs by its participation. Even minor variances in this risk can affect the choice of a business association.
The modern trend is to avoid personal liability as far as possible, either by choosing a corporate form, or a particular partnership form providing for limited liability. Nevertheless, it is still conceivable that the founders of a business would be willing to promote the impression of personal liability in order to attract business. This limits their choice to all kinds of internationally available “partnerships,” the concept of which, in contrast to the concept of “corporations,” is widely associated with personal liability.
However, personal liability need not equal personal liability, and thus, in spite of likewise representing the general idea of personal liability, partners might consider the “partnership” of one legal order preferable to the “partnership” of another legal order. This hypothesis prompts a comparative analysis of the liability in a general partnership under UPA and RUPA and its equivalent under German law.
Inhaltsverzeichnis (Table of Contents)
- A. Introduction
- B. GbR and OHG
- C. Creation of the Obligation During Membership
- I. Contractual Obligations
- 1. UPA
- 2. RUPA
- 3. HGB
- 4. Conclusion
- II. Tortious and Breach of Trust Obligations
- 1. UPA
- 2. RUPA
- 3. HGB
- 4. Conclusion
- I. Contractual Obligations
- D. Creation of the Obligation Before Membership
- 1. UPA
- 2. RUPA
- 3. HGB
- 4. Conclusion
- E. Creation of the Obligation After Membership Ceases
- 1. UPA
- 2. RUPA
- 3. HGB
- 4. Conclusion
- F. Dissociation and Partner's Existing Liability
- 1. UPA
- 2. RUPA
- 3. HGB
- 4. Conclusion
- G. Conclusion and Critique
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This paper aims to provide a comparative analysis of personal liability in partnerships under U.S. and German law. It examines the legal frameworks governing the creation and extent of partner liability in various scenarios.
- Personal liability of partners in partnerships
- Comparative analysis of U.S. (UPA and RUPA) and German (HGB) partnership law
- Liability arising from contractual obligations
- Liability arising from tortious acts and breaches of trust
- Liability before, during, and after partnership membership
Zusammenfassung der Kapitel (Chapter Summaries)
A. Introduction: This introductory section lays the groundwork for the comparative analysis by providing context and outlining the scope of the paper. It sets the stage for the in-depth examination of personal liability in partnerships under U.S. and German legal frameworks.
B. GbR and OHG: This chapter likely introduces the relevant German partnership forms (GbR and OHG), explaining their characteristics and legal structures. It would serve as a foundation for understanding the German perspective in the later comparative analysis. The chapter would likely contrast the structure of these partnerships with their U.S. counterparts.
C. Creation of the Obligation During Membership: This chapter delves into the circumstances under which partners become personally liable during their active membership. It analyzes both contractual obligations (examining differences between UPA, RUPA, and HGB) and liability stemming from torts or breaches of trust. The chapter would provide detailed examples and case law for each legal system to illustrate the nuances of liability.
D. Creation of the Obligation Before Membership: This chapter explores the complexities of pre-membership liability. It examines how actions taken before a partnership is formally established can still lead to personal liability for future partners, comparing the treatment of such scenarios under UPA, RUPA, and HGB. This might involve situations where a partner is involved in pre-incorporation actions or agreements that subsequently bind the formed partnership.
E. Creation of the Obligation After Membership Ceases: This chapter addresses a crucial aspect of partnership liability: the continuation of liability even after a partner's withdrawal or expulsion. It analyzes how the obligations and liabilities incurred during a partnership may extend beyond the end of membership, outlining the differences between U.S. and German laws in this context. The chapter likely discusses winding-up and dissolution proceedings, along with lingering financial responsibilities.
F. Dissociation and Partner's Existing Liability: This section would likely detail the legal implications of a partner's departure from the partnership, focusing on the impact of dissociation on their existing liability. It would compare how U.S. and German legal systems handle the division of responsibility and liabilities upon a partner's exit, considering factors like the nature of the dissociation (voluntary or involuntary) and the partnership's financial state.
Schlüsselwörter (Keywords)
Personal liability, partnership law, comparative law, U.S. law, German law, UPA, RUPA, HGB, contractual liability, tortious liability, breach of trust, partnership dissolution, dissociation.
Frequently Asked Questions: A Comparative Analysis of Personal Liability in Partnerships Under U.S. and German Law
What is the main focus of this paper?
This paper provides a comparative analysis of personal liability in partnerships under both U.S. and German law. It examines the legal frameworks governing the creation and extent of partner liability in various scenarios.
Which legal frameworks are compared?
The paper compares the U.S. legal framework (specifically the Uniform Partnership Act (UPA) and the Revised Uniform Partnership Act (RUPA)) with the German legal framework (specifically the Handelsgesetzbuch (HGB)).
What are the key themes explored in this paper?
Key themes include the personal liability of partners, comparative analysis of U.S. and German partnership law, liability arising from contractual obligations, liability from tortious acts and breaches of trust, and liability before, during, and after partnership membership.
What topics are covered in the different chapters?
The paper is structured as follows: * **Introduction:** Sets the stage for the comparative analysis. * **GbR and OHG:** Introduces relevant German partnership forms (GbR and OHG) and their characteristics. * **Creation of the Obligation During Membership:** Examines partner liability during active membership, covering contractual and tortious obligations under UPA, RUPA, and HGB. * **Creation of the Obligation Before Membership:** Explores liability arising from actions taken before partnership formation under UPA, RUPA, and HGB. * **Creation of the Obligation After Membership Ceases:** Addresses continued liability after a partner's withdrawal or expulsion under UPA, RUPA, and HGB. * **Dissociation and Partner's Existing Liability:** Details the legal implications of a partner's departure on their existing liability, comparing U.S. and German approaches. * **Conclusion and Critique:** Summarizes findings and offers critical analysis.
What types of liability are analyzed?
The analysis covers liability arising from contractual obligations, tortious acts (wrongful acts), and breaches of trust.
When does partner liability arise?
The paper examines liability arising before, during, and after partnership membership.
How does the paper compare U.S. and German law?
The paper provides a detailed comparison of how UPA, RUPA, and HGB address the creation and extent of partner liability in various situations. It highlights the differences and similarities in the legal frameworks.
What are the key legal instruments discussed?
The key legal instruments discussed include the Uniform Partnership Act (UPA), the Revised Uniform Partnership Act (RUPA), and the Handelsgesetzbuch (HGB).
What are the key words associated with this paper?
Key words include: Personal liability, partnership law, comparative law, U.S. law, German law, UPA, RUPA, HGB, contractual liability, tortious liability, breach of trust, partnership dissolution, dissociation.
- Arbeit zitieren
- Michael Müller (Autor:in), 2011, Personal Liability in a Partnership , München, GRIN Verlag, https://www.grin.com/document/179725
