Page 83 - Albanian law on entrepreuners and companies - text with with commentary

2. As regards the internal relationships, there is no obligation to personally cover the
partnership’s debts. Therefore, if a partner voluntarily pays debts of the partnership to a
creditor, he may request the payment from the partnership as ‘expenses’ according to Article
27. If the partnership does not pay, the partner who has the claim against the partnership
based on Article 27 may not request payment from the other partners based on Article 40 (1).
He is not a ‘third party’ as of Articles 38 et seq. whose claims would require protection by
personal liability of partners. His claim derives directly from the partnership relation, i.e. it
corresponds as an individual claim to a ‘collective (‘social’) obligation’ of the partnership.
Otherwise, the principle of Article 29 which limits contributions on those agreed in the statute
would be overthrown by the creation of an additional obligation based on Articles 27 and 40
(1). Therefore, Article 40 (1) is not applicable in case of such internal ‘collective partnership
101
obligations.’
However, based on the internal relationship (and not on Article 40 ), the unsatisfied
payment of the partnership bill may be requested from the other partners proportionally with
respect to their internal joint and several liability according to the relevant Civil Code
provisions, Articles 423-435 (and Article 626). This point of view does not conflict with
Article 29 (no additional contributions) as payment of partners in the frame of compensating
joint and several liability cannot be treated as an increase of partners’ contributions. In other
words, this payment derives only from the risk of the partnership’s external affairs which is
distributed internally among partners. It may not make any difference if a partner is directly
called into obligation by a third party creditor or indirectly by another partner seeking
proportional compensation after having satisfied a creditor’s claim.

Article 41
Objections
Should a creditor file a claim against a partner with respect to an obligation of the
general partnership, the partner concerned may use defences available to him
personally as well as those available to the partnership.

101 This would at least be the ‘German solution’ as German partnership law recognizes a relative independence of the
partnership’s property. This does not mean a kind of limited liability: the partners are personally liable for the
partnership’s debts at any time. What changes is the ‘internal treatment’ of the case meaning that a partner who paid for
the partnership must first try to get his money back from the (management of the) partnership and, in case the partnership
refuses to pay, from the other partners, detracting his part of the joint and several liability. As the text shows, he would
not be a ‘third party’ and Article 40 (1) would not apply here. The alternative view, applied for example in the UK,
appears to be less convoluted. It would make no difference between the assets of the partnership and of the partners: if a
partnership creditor is paid, that debt needs to be covered by the partnership, and that is from the partners up to the limit
of its personal assets. This would be treated as a case of Article 40 (1). The partner who acts honourably in setting the
partnership’s debt, should not be penalized by the (questionable) concepts of separate partnership assets and internal
relations. He must have the advantages of any other creditor. The only difference is that he must subtract his liability
share when making his claim as against the others. The Albanian legal professionals will have to decide which solution
suites their system best.
82