Page 90 - Albanian law on entrepreuners and companies - text with with commentary

registered, unless the creditor knew about it. However, even if registered, the reduction is
without effect as against creditors’ claims which already existed at the moment of registration,
Article 62 (4). If a limited partner’s contribution is returned to him, it is considered unpaid in
relation to creditors. The same applies if a limited partner is drawing profit shares while, due
to losses, his part of the capital has become lower than the stipulated contribution, Article 62
(5). These rules show a structural alignment of the status of a limited partner with the position
of members in a limited liability company.

3. A limited partner need not be totally excluded from the management and from the
representation of the limited partnership. In the Company Law, the provisions which establish
this—the second sentence of Article 59 (1) and Article 64 (3) are only default rules. That
means the statute may provide otherwise, Article 58. Even if he is excluded from
management, the limited partner may object decisions of the general partner if the latter is
acting in breach of duty, with gross negligence or exceeding the regular conduct of the
company’s business, Article 59 (2).
There are some important rules which establish unlimited liability of the limited partner
due to legal recognition of his ‘appearance’ in outside market relations. These rules apply the
same standard which we have already met when addressing the question of apparent
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representation: a person causing a certain legal appearance is treated as if this appearance
was correct unless third parties were not in good faith. These are the cases addressed by
Articles 64 and 65 where:

 the limited partner allows his name to be part of the partnership name, Article 64
(1);
 he acts for the partnership without mentioning his special representation status,
Article 64 (2);
 he is managing the partnership in spite of being excluded from management, Article
64 (3);
 he agrees with the other founders to assume foundation commitments prior to
registration, Article 65.

4. Above all Limited Partnerships are used to create so-called ‘atypical companies’ or
‘company hybrids’, the latter meaning the combination of company forms in order to gain the
intrinsic advantages of each of these forms. Such combinations are protected by the freedom
of contract clause in Article 24 that Article 56 (2) cross-refers to. For the time being it is not
very likely that such atypical or hybrid forms will be used by Albanian investors. Above all
the flexible, ‘deregulated’, ‘partnership-like’ LLC form of the new Company Law makes the
creation of atypical Limited Partnerships superfluous. This does not mean that such forms will
sooner or later appear.

104 See above Comments to Article 12.
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