Enforcement clause for a judgment issued against a general partnership and its partners – commentary on the judgment of the District Court in Poznań of September 12, 2023, II Ca 212/23

This commentary is critical in nature. In the judgment in question, the court awarded a benefit from a general partnership and its partners. The justification for the judgment indicated that a partner bears subsidiary liability for the partnership’s obligations (Art. 31 § 2 of the Commercial Companies Code), but this is not subject to review in court. This is one of the views presented in the legal literature, but it is incorrect. A different approach is correct, according to which the subsidiary liability of a partner in a general partnership should be considered during the examination proceedings. In the event of an unconditional claim for a benefit from the partnership and a partner, the court must examine in court whether the condition for ineffective enforcement against the partnership is met. The optimal way for a creditor to pursue a claim is to demand a benefit from the partner, subject to the condition that enforcement against the partnership proves ineffective. The scope of the court’s jurisdiction in proceedings to issue an enforcement clause against a partner in a general partnership depends on the content of the judgment.