Page 74 - Albanian law on entrepreuners and companies - text with with commentary

The similarity to general partnerships comes to the fore if we consider that the property
of simple partnerships is also to be distinguished from the partners’ property. Article 1078
Civil Code takes for granted that contributions can be ‘in kind’ and create ‘ownership’ of that
property by the partnership. Article 1089 declares that creditors can exercise their claims
against the property of the partnership and against single partners. Article 1090 says “The
member who is requested to pay the obligation of the partnership may request execution to be
carried out first into the partnership’s property even if the partnership is in liquidation (…).” It
derives from the foregoing that simple partnerships are able to conclude contracts and be
creditors and debtors. This semi-autonomous position of the simple partnership could indeed
easily lead to the acceptance of legal personality, above all after having introduced their
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registration - if this was not explicitly excluded.
Still, the fact that simple partnerships do not gain legal personality through registration
does not yet explain when a partnership is simple and when it is general. We said they do not
require an ordinary business organization, similar to a natural person whose activities have
not yet reached the volume of the threshold established by the Ministry of Economy and
Trade, Article 2 (4). In fact, they would need to get organized and have a Statute in order to
become a general partnership, Article 24. However, if they do not require such an ordinary
business organization, why should they be registered? There is a contradiction of concepts
here: small scale entrepreneurs do not require registration and are not treated as business
persons. How can we treat a small simple partnership differently? We must keep in mind that
a simple partnership comes very easy into existence because formal contractual formalities do
not exist.
For example, if two or more persons agree to jointly subscribe to a law journal, pay the
subscription price and enjoy joint reading, should they be registered? In other words, in order
to come to a coherent normative valuation here, simple partnerships should only be required
to register if they require the same business organization in question. For entrepreneurs, this is
taken for granted if their business volume passes the threshold established by the Ministry of
Economy and Trade. At least for those simple partnerships which the Albanian law makers
had in mind when introducing their registration, i.e. law offices and other services which use
this form of organization, one would not even need any threshold as they do certainly ‘require
an ordinary business organization’. However, in order to have a clear-cut rule, the same
threshold should also be applied for simple partnerships in order to be registered. The
question is then: what would or should still distinguish those partnerships from general
partnerships? Not attributing them legal personality would at this point be artificial indeed.
So the most adequate solution to us would be the following:

97 German jurisprudence is divided on legal personality of simple partnerships. The courts accept simple partnerships as
“legal subjects without legal personality”. Some parts of German doctrine accept legal personality of simple
partnerships. However, this debate is to be seen in context: it also concerns general and limited partnerships as Germany
is among those countries which do not even grant legal personality to these partnership forms in spite of the fact that they
are even more independent than simple partnerships.
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