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Partnership agreement gk. Governing bodies of a full partnership

Commentary on Article 1041 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. The design of a joint venture agreement was previously known to Russian (Soviet) law. The Civil Code of the RSFSR in 1964, the Fundamentals of Civil Legislation of the USSR and the republics of 1991 contained norms on this type of agreement, which is not accidental, since a simple partnership agreement is one of the most common types of agreements, the use of which began in the Roman era.

2. The distinctive features of this agreement include:

a) the presence of a single common goal: making a profit, building real estate, etc. “Within the framework of such an agreement, the comrades pursue the same goal, including making a profit, and this goal can be achieved by the comrades precisely as a result of their joint actions” (Resolution of the FAS North-West District of October 26, 2010 in case No. A42-8760 / 2009). It should be noted that, as a rule, in civil law contracts, the goals of the parties are different: the seller wants to receive money, and the buyer wants to own the thing, etc. And in this there is a fundamental difference between joint activities and similar agreements, primarily from the agreement for participation in shared construction, according to which one party (the developer) undertakes to build (create) an apartment building within the time period stipulated by the agreement and (or) with the involvement of others. (or) another real estate object, and the other party (participant in shared construction) undertakes to pay the price stipulated by the contract and accept the object of shared construction (Article 4 of the Federal Law of December 30, 2004 N 214-FZ “On participation in shared construction of apartment buildings and other real estate objects and on amendments to some legislative acts of the Russian Federation ”). As you can see, the goals of the parties to the agreement on participation in shared construction are different, which does not allow equating it with an agreement on joint activities;

b) pooling the contributions of comrades. For more details on the types of contributions to joint activities, see Art. 1042 of the Civil Code of the Russian Federation;

c) the obligation of the partners to act jointly to achieve a common goal, in contrast to the participants in a business company, for whom such an obligation is not provided.

3. Despite the similarity of names, a simple partnership agreement should be distinguished from a full partnership agreement, since the latter is the organizational and legal form (type) of a legal entity. Within the framework of a simple partnership agreement, a legal entity is not created.

This agreement should not be confused with the agreement of the homeowners' partnership, which is also the organizational and legal form of a legal entity, a kind of non-profit organization.

4. As a general rule, participants in a simple partnership agreement may be any entity, with the exception of members of a partnership created to carry out entrepreneurial activities. The interpretation of the concept of entrepreneurial activity in relation to the analyzed contract can be found in judicial practice. So, in one of the cases, in support of the stated requirement to invalidate the agreement on joint activities for the construction and operation of a paid parking lot, the plaintiff referred to the fact that before the expiration of the agreement on joint activities, the defendant entered into an agreement with a third party for the sale of the part of the building due to him, the construction of which has not been completed. At the time of the conclusion of the joint venture agreement, the defendant did not intend to sell the part of the building due to him. The named agreement with a third party was concluded by the defendant two years after the signing of the agreement on joint activities, which was an agreement on the sale of the future property of the defendant and was due to a reduction in the number of staff and the exhaustion of the need for additional premises. Therefore, there is no reason to believe that the contested agreement was concluded for the purpose of carrying out entrepreneurial activities (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 25, 2000 N 56 “Review of the practice of resolving disputes related to contracts for participation in construction” (clause 3)).

Article 1042. Contributions of partners

Commentary on Article 1042 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. You should pay special attention to the fact that, in contrast to the list of possible contributions to the property of legal entities (Article 66 of the Civil Code), the list of what can be included in the common business by the comrades is much wider.

In addition to property, primarily in the form of money and other things, non-property values such as professional and other knowledge, skills and abilities, as well as business reputation and business ties, can be assessed and made as a contribution. It should be noted that only legal entities and individual entrepreneurs can have a business reputation and, therefore, cannot be contributed as a contribution by an individual.

The specified list is not formally closed, and other values, except for those listed in the article, may be the contribution of a partner, including: property rights, for example, the right to lease property; exclusive rights to the results of intellectual activity, for example, patent rights; and on means of individualization, for example, rights to a trademark. The only criterion that allows you to determine the admissibility of using an object as a contribution is the ability to evaluate it by partners from the standpoint of benefits for the partnership.

The possibility of using objects that are not directly listed in the commented article as contributions can be illustrated by materials of judicial practice. So, in one of the cases, the court established that “the property contributed by the comrades, including property rights to audiovisual works, which they possessed on grounds other than ownership, in accordance with Article 1043 of the Civil Code of the Russian Federation is used in the interests of all comrades and amounts to common property of the comrades ”(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 27, 2003 N 3034/03).

2. The dispositive approach to the choice of possible objects of contribution to the common cause is largely due to the fact that each of the partners is obliged to personally participate in the activities of the partnership, in contrast to the participants in legal entities (except for participants in economic partnerships). This means that it is assumed that business connections, skills, abilities and other personal qualities of a comrade will be used by those who "brought" them into the common cause, and at the same time they will be useful to everyone.

In addition, in a simple partnership there is no authorized capital and, therefore, the question of ensuring the interests of creditors through its replenishment with precisely those objects (values) that can be used in the interests of creditors (sold at auction, etc.) is not raised.

3. Cost, ie monetary, the assessment of a friend's contribution is made by the comrades themselves by agreement among themselves. There is no obligation to involve an independent appraiser to evaluate non-monetary contributions, as is sometimes required by law in relation to business companies, which is again due to the fact that the common property of comrades is primarily a means of implementing the tasks that they set for themselves, and only then the guarantee of the rights of the comrades' creditors (and that is not obligatory). Although this estimate will further affect the distribution of profits and the coverage of expenses, it may not correspond to the market value or the carrying amount of such property.

4. Regarding the value of deposits, the law speaks of three possible options:

1) the value of the contributions is determined by the partners, and the amount of the contributions is established in the agreement;

2) the value of the contributions is not determined by the partners in the contract, and accordingly, all the contributions of the partners are assumed to be equal in value;

3) the value of the contributions was not determined by the partners in the agreement, and therefore the contributions are assumed to be equal in value, however, from the actual circumstances it will be possible to conclude that the value of the contribution of one of the partners has become different and, accordingly, is no longer equal to the value of the contributions the rest. Such circumstances include, for example, an increase in the value of property contributed to a common business as a result of the widespread rise in prices for certain property.

5. Is the condition on the amount of the deposit essential? Different points of view are possible here. So, in one of the cases, the court determined that “the agreement of the participants on the amount of contributions to the common property is an essential condition of a simple partnership agreement” (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 6, 1998 N 249/98). It seems that the court did not have sufficient grounds for such a statement, since the commented article states that the shares are assumed to be equal, unless otherwise follows from the contract. In other words, the law does not oblige the comrades to agree on such a condition, which means, in accordance with Art. 432 of the Civil Code of the Russian Federation, such a condition cannot be considered essential, which is confirmed in judicial practice. So, in the opinion of the Supreme Arbitration Court of the Russian Federation, “if a monetary assessment of the contributions of the parties is impossible and the parties do not come to an agreement on this issue, it should be assumed that, in accordance with Articles 1042 and 245 of the Civil Code of the Russian Federation, the contributions of comrades, as well as in the law of common shared ownership are considered equal ”(Definition of the Supreme Arbitration Court of the Russian Federation of April 22, 2009 N 4174/09).

Article 1043. Common property of partners

Commentary on Article 1043 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. Since the goal of the parties to the agreement is common, then the property of the comrades, as a general rule, is common. In this case, the common property of the comrades consists of two parts.

Firstly, this is the property that they possess on the basis of the right of common shared ownership. This includes property that belonged to the participants by right of ownership and was contributed by the partners as contributions, as well as the products produced as a result of joint activities and the fruits and incomes received from such activities. With regard to real estate contributed by the participants, the Supreme Arbitration Court of the Russian Federation clarified that a simple partnership agreement (on joint activities), according to which one of the parties undertakes to transfer real estate as its contribution, does not require state registration. However, if one of the parties to such an agreement evades state registration of the emergence of common shared ownership of the parties to this property, the court has the right, at the request of the other party, to make a decision on state registration of the transfer of immovable property into common shared ownership (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 city N 59).

Secondly, the common property includes the property contributed by the partners, which they possessed on grounds other than ownership. For example, it can be a right to use the leased property included in a common business, or an exclusive right, for example, the right of a patent holder.

2. The common property regime exists, unless otherwise provided by law, by a simple partnership agreement, or does not follow from the essence of the obligation. In particular, by the agreement, the parties can determine that the right to common shared ownership arises only for products and income, or, conversely, determine that the property created under the agreement belongs to the category of personal property.

3. Common property also arises from the funds contributed to the common case, which is reflected in judicial practice. So, according to the court, “since the monetary contribution to be made under the simple partnership agreement becomes the common shared property of the partners, the party to the agreement does not have the right to enforce collection from the other side in its favor of the amount of the contribution, since this contradicts the nature of this contribution. It is impossible to recognize this claim as a way of compensation for losses ”(Resolution of the Federal Antimonopoly Service of the Central District of December 14, 2000 N A14-1522-00 / 64/21).

4. The provisions of Ch. 16 of the Civil Code of the Russian Federation (“Common property”), but taking into account the provisions contained in the commented article. In particular, Art. 249 of the Civil Code of the Russian Federation establishes that "each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of its maintenance and preservation," while the commented article says that this the issue is resolved by an agreement.

5. As under Art. 247 of the Civil Code of the Russian Federation, the use of the common property of the partners is carried out by their common consent, and if agreement is not reached, in the manner established by the court, the court may establish the procedure for using the property by amending the simple partnership agreement.

Use in the doctrine of civil law is defined as the extraction of useful properties of a thing, therefore, this concept includes situations such as the operation of a car, use of premises for conducting business, etc. Moreover, this option for using property, as receiving part of the profit, is regulated by a special rule, namely Art. 1048 of the Civil Code of the Russian Federation.

6. Attention should be paid to the need to choose an appropriate way to protect the violated right to use common property. Thus, in the judicial act it was determined that “since this rule of law, to which the plaintiff refers to substantiate the claim, provides the right to apply to the court with a claim for the establishment by the court of the procedure for the use of common property, the arbitration court rightfully refused to satisfy the claim for recognition the right to use common property ”(Resolution of the Federal Antimonopoly Service of the West Siberian District of November 1, 2004 N F04-7787 / 2004 (5952-A45-22)).

Article 1044. Conducting common business of partners

Commentary on Article 1044 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. Since there are no management bodies in a simple partnership, relations with third parties are carried out directly by the partners themselves, as well as management within the partnership itself. A distinction should be made between decisions concerning the common affairs of comrades, i.e. management within the partnership (clause 5 of the commented article), and relations of partners with third parties (clauses 1 - 4 of the commented article).

2. In relations with third parties, there is a presumption of the right of each partner to act on behalf of all partners, primarily to conclude transactions. Otherwise, the agreement may be established when the conduct of business is carried out only by individual participants or jointly by all parties to the agreement.

If the conduct of business is carried out by individual participants, then their authority to conclude transactions on behalf of all partners is certified by a power of attorney issued by the other partners, or by the simple partnership agreement itself, but necessarily made in writing.

When doing business together, each transaction requires the consent of all partners, which must be expressed in writing or through personal participation in the transaction.

3. In relations with third parties, the partners cannot refer to restrictions on the rights of the partner who made the transaction to manage the common affairs of the partners, unless they prove that at the time of the conclusion of the transaction the third party knew or should have known about the existence of such restrictions.

4. A comrade who has made transactions on behalf of all partners in respect of which his right to conduct common business of partners has been limited, or who has entered into transactions in the interests of all partners on his own behalf, may demand reimbursement of expenses incurred by him at his own expense, if there were sufficient grounds to believe that these deals were necessary in the interests of all comrades. Evidence of this need must be provided by the incurring partner. So, in one of the cases the plaintiff in accordance with Art. 65 of the Arbitration Procedure Code of the Russian Federation did not provide the court with evidence that it was necessary to conclude transactions for carrying out repair work and adjusting the equipment in the interests of all comrades, as well as the fact that all comrades, in the manner prescribed by the contract, made a decision on this issue (Resolution of the FAS Severo- Western District of May 22, 2007 N A05-12346 / 2006). On the other hand, comrades who have suffered losses as a result of such transactions have the right to demand compensation for them.

5. Decisions concerning the management of the partnership are made by the partners by common agreement. At the same time, voting is also possible on a corporate basis, i.e. by the number of votes, if it is stipulated by the contract of simple partnership.

The judicial authorities consider the issue of amendments or additions to the simple partnership agreement as an issue related to the general partnership matters. Thus, in one of the cases it was established that “the general decision of the participants of a simple partnership regarding the transfer of investment rights from OJSC“ 36-SU ”to LLC“ Glavstroyprom-invest ”was not adopted. Under such circumstances, the conclusion that Glavstroyprom-invest LLC does not have the right to receive apartments Nos. 14, 78, 89, 130 does not contradict the law ”(Resolution of the Federal Antimonopoly Service of the Moscow District of March 21, 2002 N KG-A40 / 1400-02).

Article 1045. Right of a partner to information

Commentary on Article 1045 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. The content of this article is clearly narrower than its title, since we are essentially talking about information about the activities of the partnership, and it can be contained not only in the documentation for the conduct of the case. This can be found in judicial practice. So, by a court decision, the defendant was obliged to submit to the participant of the simple partnership agreement “information on opening a current account under the agreement, the balance of expenses and income for the activities of a simple partnership, copies of agreements on equity participation in the construction of a house with third parties, information on design estimates, power of attorney to obtain permission to build a house ”(Resolution of the Federal Antimonopoly Service of the North-West District of December 7, 2000 N A56-17086 / 00). As you can see, the requested documents may include not only the documentation on the conduct of the case.

2. Waiver of the right to information or its limitation as in the form of a unilateral transaction, i. E. through the statement of the participant, and in the form of the terms of the agreement (contract) itself, in any case, is null and void.

3. The answer to the question of who may be required to provide information depends on which model of common affairs was chosen by the comrades (Article 1044 of the Civil Code). If the contract establishes that, in the conduct of common affairs, each partner has the right to act on behalf of all partners, then the requirements must be presented to the participant who has the relevant information.

If the agreement establishes that the conduct of business is carried out by separate participants, then the requirements must be presented to that participant (participants) who is entrusted with the conduct of common business. At the same time, this does not exclude the presentation of requirements to the participant who has the relevant information.

Article 1046. General expenses and losses of partners

Commentary on Article 1046 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. The law divides costs into two parts: 1) costs, which should be understood as costs of joint activities; 2) expenses (losses) that arise in connection with the illegal actions of third parties.

The first group of expenses should include the cost of purchasing equipment, materials, renting offices, etc.

The costs of the second group include the costs of restoring property (repairs), if damage caused by third parties remains uncompensated, as well as losses due to the impossibility of collection under contracts, etc.

At the same time, it is important that the costs are exactly general. Thus, in one of the cases, the court established that “since the leasing (financial lease) contract of a vessel with the option of redemption was concluded with the consent of all the partners and… the vessel was used by all parties to the agreement and solely in the interests of the partnership… then… the costs of paying lease payments are expenses, related to joint activities ”(Resolution of the Federal Antimonopoly Service of the North-West District of December 19, 2008 N A05-3303 / 2008).

2. An agreement on the procedure for covering expenses and losses associated with joint activities of partners may be either part of a joint activity agreement or an independent agreement. In the absence of such an agreement, each partner incurs expenses and losses in proportion to the value of his contributions to the common cause, which is determined in accordance with the rules of Art. 1041 of the Civil Code of the Russian Federation.

3. Unlike Art. 1045 of the Civil Code of the Russian Federation, which prohibits not only full, but also partial waiver of the right to information, the commented article allows for the possibility of partial exemption from the obligation to cover general expenses or losses, speaking only of the nullity of the full exemption. However, the specific percentage (share) within which the participant will be liable must be indicated in the contract, otherwise such an agreement in terms of reducing liability will be considered not concluded.

4. The procedure for covering costs, which is referred to in the commented article, presupposes an indication not only of proportionality in incurring costs, but also of the presence of other conditions, for example, an indication of the timing of making the corresponding payments, the form of covering costs (monetary or material), bank numbers accounts for transfer, etc.

Article 1047. Liability of partners for common obligations

Commentary on Article 1047 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. First of all, it should be noted that partners are fully liable for common obligations, unlike participants, for example, limited liability companies, whose liability, as a general rule, is limited by their contribution to the authorized capital of the company.

In addition, the liability of the partners is not subsidiary (additional), since there is no legal entity whose liability would be the main one, as is the case with the liability of participants in a full partnership (Article 75 of the Civil Code). This means that the execution can ultimately be levied on a partner's own property. Moreover, there is no priority of collection, and within the amount of the debt, the creditor has the right to foreclose both on the share in the common property of the comrades and on the personal property of the participant at the same time. Such liability is called unlimited.

2. Liability within the framework of a partnership can arise only for general obligations. These should be understood as those obligations that are associated with the activities of the entire partnership and are aimed at realizing the goals of the partnership. So, in one of the cases, the court established that “the plaintiff did not prove that when concluding the supply agreement he acted on behalf of all the partners ... the legal relationship under the supply agreement arose between independent business entities - and the relationship of the partners within the framework of the simple partnership agreement had nothing to do with the supply agreement ... In this regard ... there were no grounds for applying paragraph 2 of Article 1047 of the Civil Code of the Russian Federation on joint and several liability of comrades for their common obligations ”(Resolution of the Federal Antimonopoly Service of the Moscow District of March 15, 2006 N KG-A40 / 1320-06).

3. The peculiarities of the liability of the comrades for the obligations depend on a number of circumstances.

First of all, it is necessary to analyze the grounds for the occurrence of obligations, namely: they arose from the contract or are non-contractual. The latter include, first of all, obligations from causing harm and from unjust enrichment.

For obligations that did not arise from the contract, the comrades are always jointly and severally liable. In case of a joint and several obligation, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, moreover, both in full and in part of the debt. A creditor who has not received full satisfaction from one of the joint and several debtors has the right to claim the less received from the other joint and several debtors. Joint and several debtors remain obligated until the obligation is fulfilled in full (Article 323 of the Civil Code).

Secondly, it is necessary to find out whether or not a simple partnership agreement is connected with the implementation of entrepreneurial activities by its participants. In the event that the contract is such, the partners are jointly and severally liable for all common obligations, regardless of the grounds, i.e. including under contractual obligations.

Article 1048. Distribution of profits

Commentary on Article 1048 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. The possibility of making a profit in proportion to the value of the partners' contributions to the common cause does not contradict Art. 248 of the Civil Code of the Russian Federation, which states that participants in common property distribute income in proportion to their shares in common property. Otherwise, it can be provided both by the contract of simple partnership itself, and by another agreement of the partners. At the same time, any agreement on the removal of any of the comrades from participation in the profit is null and void.

2. The jurisprudence emphasizes that the distribution of the results of joint activities should be carried out in accordance with the terms of the contract. Thus, one of the resolutions states that “ST-Veronika CJSC and Tyumensky Stroitel CJSC entered into an agreement for the latter’s equity participation in the construction of a house ... without indicating that ST-Veronika CJSC acts on behalf of the comrades and in the absence of the consent of ZAO Tyumenspetskomplekt to conclude this transaction ... Thus ... ZAO ST-Veronika, in violation of Article 1048, paragraph 3 of Article 244, paragraph 1 of Article 246 of the Civil Code of the Russian Federation, has not provided evidence of the joint activity that he received the consent of OJSC "Tyumenspetskomplekt" to conclude an agreement for equity participation in the construction of the house, or there was approval of the said agreement. In fact, the independent distribution of the results of joint activities by ST-Veronika CJSC was committed in violation of the terms of the agreement on the transfer of these functions to Tyumenspetskomplekt OJSC and does not comply with the provisions of the Civil Code of the Russian Federation on the rules for conducting common affairs of comrades ”(Resolution of the Federal Antimonopoly Service of the West Siberian District of October 14, 2008 . N F04-6290 / 2008 (13559-A70-13)).

Article 1049. Allocation of a partner's share at the request of his creditor

Commentary on Article 1049 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. In Art. 255 of the Civil Code of the Russian Federation, to which the commented article refers, the following rules for the allocation of a share at the request of the creditor are determined.

The creditor of a participant in shared ownership, if the owner of other property is insufficient, shall have the right to present a demand for the allocation of the debtor's share in the common property for levying execution on it. Thus, the creditor must prove in court that the debtor, who is a participant in the partnership, does not have property on which a claim can be levied, except for a share in a simple partnership.

Next, you need to find out whether it is possible to allocate a share in kind, i.e. transfer specific property to the creditor for an amount equal to his claims. If it turns out that the allocation of a share in kind is impossible or the other participants in shared ownership object to this, the creditor has the right to demand that the debtor sell his share to the other participants in the common property at a price commensurate with the market value of this share, with the proceeds from the sale to pay off the debt.

If the rest of the participants in the common property refuse to acquire the share of the debtor, the creditor shall have the right to demand, in a judicial proceeding, the foreclosure on the share of the debtor in the right of common property by selling this share at a public auction. Allocation of the partner's share at the request of his creditor in accordance with Art. 1050 of the Civil Code of the Russian Federation leads to the termination of the contract, if the contract does not provide for the possibility of its preservation.

2. In judicial practice, attention is drawn to the need to comply with the procedure for filing a requirement for the allocation of a share in common property. One of the judicial acts established the following: “The Tax Inspectorate in accordance with Article 46 of the Tax Code of the Russian Federation ... on the basis of a decision on the enforcement of taxes, issued collection orders to the current account ... the account to which the collection orders were issued is a separate bank account opened by the plaintiff as a person entrusted with the obligation to conduct common affairs, to carry out settlements for activities related to the implementation of a simple partnership agreement.

Thus, in this case, the funds in the taxpayer's account are not the defendant's funds and do not belong to him.

Article 255 of the Civil Code of the Russian Federation stipulates that a creditor of a participant in shared or joint ownership, if the owner of other property is insufficient, has the right to present a demand for the allocation of the debtor's share in the common property for foreclosure. However, the above procedure was not followed by the tax inspectorate ”. As a result, the claim for invalidation of collection orders was satisfied (Resolution of the Federal Antimonopoly Service of the North-Western District of October 3, 2000 N A05-4350 / 00-202 / 22).

Article 1050. Termination of a simple partnership agreement

Commentary on Article 1050 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. The law establishes special grounds for the termination of a simple partnership agreement not only in the commented article, but also in Art. 1052 of the Civil Code of the Russian Federation.

Of course, this agreement can be terminated by means of some “general” grounds for termination of obligations. For example, at the request of one of the parties, the contract can be terminated by a court decision in case of a significant violation of the contract by the other party or parties (Article 452 of the Civil Code). In this case, a simple partnership agreement cannot be terminated, for example, by performance (Article 407 of the Civil Code) or offset (Article 410 of the Civil Code), since this contradicts the essence of the construction of this agreement.

2. It is important to note that the commented article deals with the “automatic” termination of the contract without a court decision, since only one of the grounds given in this article is necessary.

3. All grounds for termination of a simple partnership agreement, with the exception of the expiration of this agreement, have the properties of dispositiveness. This means that the partners in the agreement may provide that even in the event of circumstances that are grounds for terminating the agreement, its actions continue, for example, provide for the replacement of a deceased partner (liquidated or reorganized legal entity) by his heirs (successors).

4. It should also be noted that the law specifically regulates in Art. 1051 of the Civil Code of the Russian Federation, the procedure for refusing any of the partners from further participation in an open-ended simple partnership agreement.

5. It is necessary to distinguish between the termination of the contract with one of the participants, ie. in essence, his withdrawal from the partnership, and the termination of the entire agreement, which is drawn attention to in judicial practice. Thus, the court ruling stated that “the termination of the contract with respect to the plaintiff did not entail the termination of this contract with respect to the rest of the comrades. The agreement on joint activities dated 26.08.2004 continues to operate. Thus, the return of property contributed as a contribution to joint activities is unacceptable if this could violate the interests of creditors and other participants in the current agreement on joint activities. At the same time, the plaintiff is not deprived of the opportunity to demand the separation of a share from the common property, assessed at the time of termination of the contract ”(Resolution of the Federal Antimonopoly Service of the Moscow District of December 22, 2005 N KG-A40 / 12456-05).

6. Joint and several liability for unfulfilled general obligations in relation to third parties means that creditors' claims can be brought against one or more of the former participants in the partnership, or all at once.

7. In Art. 252 of the Civil Code of the Russian Federation, to which the commented article refers, the following procedure for the division of property between former co-owners is established. Property in shared ownership can be divided between its participants by agreement between them. If the participants in shared ownership fail to reach an agreement on the method and conditions for the division of common property, the participant in shared ownership shall have the right in court to demand the separation in kind of his share from the common property. If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the emerging owner has the right to pay him the value of his share by other participants in shared ownership.

Attention is also drawn to the need to use an appropriate method of protecting the rights of former participants in judicial practice. So, the court established the following: “Based on the provisions of the current legislation, the terms of the simple partnership agreement and the specific circumstances of the case, upon termination of the said agreement, its party has the right to demand in court the separation in kind of its share from the common property of the partners (payment of the value of the share in the common property of the partners if it is impossible to separate it in kind), but has no right to demand collection from the other side in its favor of the amount of the contribution. Meanwhile, the plaintiff in the case under consideration filed a claim to recover a sum of money (unjust enrichment), while a claim should have been made to separate his share from the common property ”(Resolution of the FAS of the Ural District of February 3, 2011 N F09-48 / 11-C4 on case N A07-9983 / 2010).

Simple partnership agreement

2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity.

3. The specifics of a simple partnership agreement concluded for the implementation of joint investment activities (investment partnerships) are established by the Federal Law "On Investment Partnerships". (Clause 3 was introduced by the Federal Law of 28.11.2011 N 336-FZ)

Article . Contributions of comrades

1. A friend's contribution is recognized as everything that he brings to the common cause, including money, other property, professional and other knowledge, skills and abilities, as well as business reputation and business ties.

2. The contributions of the partners are assumed to be equal in value, unless otherwise follows from the simple partnership agreement or actual circumstances. The monetary assessment of the partner's contribution is made by agreement between the partners.

Article . Common property of comrades

1. The property contributed by the partners, which they possessed on the right of ownership, as well as the products produced as a result of joint activities and the fruits and incomes received from such activities are recognized as their common shared property, unless otherwise provided by law or a simple partnership agreement or follows from the essence of the obligation ...

The property contributed by the partners, which they possessed on grounds other than ownership, is used in the interests of all partners and constitutes, along with the property in their common ownership, the common property of the partners.

2. The accounting of the common property of the partners may be entrusted by them to one of the legal entities participating in the simple partnership agreement.

3. The use of the common property of the partners shall be carried out by their common consent, and in case of failure to reach agreement, in the manner established by the court.

4. The obligations of the partners for the maintenance of the common property and the procedure for reimbursement of expenses related to the performance of these obligations are determined by the contract of simple partnership.

Article . Conducting the common affairs of comrades

1. When conducting common affairs, each partner has the right to act on behalf of all partners, unless the contract of simple partnership has established that the conduct of business is carried out by individual participants or jointly by all participants in the contract of simple partnership.

When doing business together, each transaction requires the consent of all partners.

2. In relations with third parties, the authority of a partner to conclude transactions on behalf of all partners shall be certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement made in writing.

5. Decisions concerning the common affairs of the partners are made by the partners by common agreement, unless otherwise provided by the contract of simple partnership.

Article . Comrade's right to information

Each comrade, regardless of whether he is authorized to conduct the general affairs of comrades, has the right to familiarize himself with all the documentation on the conduct of business. Waiver of this right or its limitation, including by agreement of the partners, are void.

Article . General expenses and losses of comrades

The procedure for covering expenses and losses associated with the joint activities of partners is determined by their agreement. In the absence of such an agreement, each partner incurs expenses and losses in proportion to the value of his contribution to the common cause.

An agreement completely exempting any of the partners from participating in covering general expenses or losses is void.

Article . Liability of Partners for Common Obligations

1. If the contract of a simple partnership is not connected with the implementation of entrepreneurial activities by its participants, each partner shall be liable for general contractual obligations with all of his property in proportion to the value of his contribution to the common cause.

For general obligations that did not arise from the contract, the comrades are jointly and severally liable.

2. If a simple partnership agreement is connected with the implementation of entrepreneurial activities by its participants, the partners shall be jointly and severally liable for all common obligations, regardless of the grounds for their occurrence.

Article . Profit distribution

The profit received by the partners as a result of their joint activities shall be distributed in proportion to the value of the partners' contributions to the common cause, unless otherwise provided by the contract of simple partnership or other agreement of the partners. An agreement on the elimination of any of the partners from participation in the profit is null and void.

Article . Allocation of a partner's share at the request of his creditor

A creditor of a participant in a simple partnership agreement has the right to present a demand for the allocation of his share in the common property in accordance with Article 255 of this Code.

Article . Termination of a simple partnership agreement

1. A simple partnership agreement is terminated due to:

declaring one of the partners incapacitated, partially capable or missing, if the contract of simple partnership or the subsequent agreement does not provide for the preservation of the contract in relations between the other partners;

declaring any of the partners insolvent (bankrupt), with the exception specified in the second paragraph of this clause;

death of a partner or liquidation or reorganization of a legal entity participating in a simple partnership agreement, if the agreement or subsequent agreement does not provide for the preservation of the agreement in relations between the other partners or replacement of the deceased partner (liquidated or reorganized legal entity) by his heirs (successors);

refusal of any of the partners from further participation in the unlimited contract of simple partnership, with the exception specified in the second paragraph of this clause;

termination of a simple partnership agreement concluded with an indication of the term, at the request of one of the partners in relations between him and the other partners, with the exception specified in paragraph two of this clause;

expiration of the term of the simple partnership agreement;

the allocation of a partner's share at the request of his creditor, with the exception specified in the second paragraph of this clause.

2. Upon termination of a simple partnership agreement, things transferred into the common possession and (or) use of the partners shall be returned to the partners who provided them without remuneration, unless otherwise provided by agreement of the parties.

From the moment of termination of a simple partnership agreement, its participants shall be jointly and severally liable for unfulfilled common obligations in relation to third parties.

The division of the property that was in the common ownership of the partners and the common rights of claim arising from them shall be carried out in the manner established by Article 252 of this Code.

A comrade who has contributed an individually defined thing to common ownership has the right, upon termination of a simple partnership agreement, to demand in court the return of this thing to him, provided that the interests of the other comrades and creditors are respected.

Article . Cancellation of an open-ended partnership agreement

A statement on the refusal of a partner from an open-ended partnership agreement must be made by him not later than three months before the expected withdrawal from the agreement.

An agreement on the limitation of the right to withdraw from an open-ended partnership agreement is null and void.

Article . Termination of a simple partnership agreement at the request of a party

Along with the grounds specified in paragraph 2 of Article 450 of this Code, a party to a simple partnership agreement concluded with an indication of the term or with an indication of the purpose as a canceling condition has the right to demand termination of the contract in relations between themselves and the rest of the partners for a good reason with compensation to the rest of the partners of the real damage caused by termination of the contract.

Article . Liability of a partner in respect of whom the simple partnership agreement has been terminated

In the event that a simple partnership agreement was not terminated as a result of a statement by any of the participants to refuse to further participate in it or to terminate the agreement at the request of one of the partners, the person whose participation in the agreement has terminated is liable to third parties for common obligations, that arose during the period of his participation in the agreement, as if it remained a participant in the simple partnership agreement.

Article . Private partnership

1. The contract of simple partnership may provide that its existence is not disclosed to third parties (unofficial partnership). The rules on a simple partnership agreement provided for by this Chapter shall apply to such an agreement, unless otherwise provided by this Article or follows from the essence of a secret partnership.

2. In relations with third parties, each of the participants in the secret partnership shall be liable with all his property for transactions that he concluded on his own behalf in the common interests of his partners.

3. In relations between partners, obligations arising in the course of their joint activities shall be considered common.

Civil Code, N 14-FZ | Art. 1041 of the Civil Code of the Russian Federation

Article 1041 of the Civil Code of the Russian Federation. Simple partnership agreement (current version)

2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity.

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Commentary on Art. 1041 of the Civil Code of the Russian Federation

Judicial practice under article 1041 of the Civil Code of the Russian Federation:

Decision of the Supreme Court: Determination N 305-ES14-7729, Judicial Collegium for Economic Disputes, cassation
When considering this dispute, the courts of first and appellate instances qualified the investment agreement concluded by the parties as a simple partnership agreement, applying, in its interpretation, the provisions of Articles 1041 and 1042 of the Civil Code and the explanations set out in paragraph 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 No. 54 "On some issues of resolving disputes arising from contracts regarding real estate that will be created or acquired in the future" (hereinafter - Resolution of the Plenum No. 54). The courts of first instance and appeal noted ...
Decision of the Supreme Court: Definition N BAC-17329/13, Supreme Arbitration Court, supervision
Thus, the terms of the disputable agreement comply with the provisions of Articles 1041, 1042 of the Civil Code of the Russian Federation. Refusing to satisfy the requirements regarding the termination of the investment contract, the courts were guided by Articles 15, 450, 452, 1041, 1042 of the Civil Code of the Russian Federation, and proceeded from the fact that in connection with the expiration of the contract - 02/29/2008 (clauses 2.2, 4.2, 4.3 investment contract), there are no legal grounds for its termination ...
Decision of the Supreme Court: Definition N BAC-7787/13, Collegium for Civil Relations, supervision
Parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity can only be individual entrepreneurs and (or) commercial organizations (paragraph 2 of Article 1041 of the Civil Code of the Russian Federation). By virtue of part 4 of article 20 of the Land Code of the Russian Federation, legal entities possessing land plots on the right of permanent (unlimited) use are not entitled to dispose of these land plots ...

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1. Under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law. 2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity. 3. The specifics of a simple partnership agreement concluded for the implementation of joint investment activities (investment partnerships) are established by the Federal Law "On Investment Partnerships".

Legal advice under Art. 1041 of the Civil Code of the Russian Federation

Polina Titova

Good afternoon, we have concluded a simple partnership agreement with a partner, accounting and stores are recorded on his IP, Do I need to additionally certify such an agreement with Natarius?

Galina Ilyina

Hello! The route for the carriage of passengers is served by 9 individual entrepreneurs. Four of them refuse a simple partnership agreement. Can the rest of them conclude such an agreement?

The answer to the question was given by phone

- Lawyer's answer:
  - Lawyer's answer:
    simple partnership agreement. at the notary's office. According to paragraph 1 of Art. 1041 of the Civil Code of the Russian Federation, for the formation of a simple partnership, the following condition must be met - to conclude an agreement that establishes the obligations of the parties to each other in order to: a) combine their contributions, b) jointly act to extract profit or achieve another goal that does not contradict the law ... The elements that are laid down by law in the basis of the concept of a simple partnership distinguish it from other types of associations of persons. A simple partnership agreement (a joint activity agreement) is not recognized as such if it lacks at least one of the above elements. Since the law qualifies a simple partnership as an agreement, only an agreement can be its sole basis. This general agreement is necessary not only for the formation of a partnership, but also for any subsequent change in the content of an already arisen agreement (for the admission of new members, for changing the purpose of the partnership, for increasing or decreasing common property, etc.), with the exception of those cases where when a special clause on resolving these issues in a different way is not included in the agreement on the formation of a simple partnership. Unlike other types of partnerships recognized by the Civil Code, a simple partnership does not form a legal entity. The participants in its composition are interconnected both by a common goal and by the community of property that forms the capital of the partnership.
- Zinaida Veselova
  
  What form of contract to apply? We are going to produce concrete for a customer using his equipment and raw materials supplied by the customer. That is, we have only engineers, specialists and labor force. The equipment provided by the customer is incomplete and needs to be repaired. We are ready to repair it and complete it. In what form should the agreement be drawn up and how to reflect all this there? Thanks.
  - Ordinary work contract.
- The firm name of a full partnership must contain either the names (names) of all its participants and the words "full partnership", or the name (name) of one or more participants with the addition of the words "and company" and the words "full partnership". Article 1041. Simple partnership agreement 1. Under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law. 2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity. P.S. I did not specifically give a direct answer to your question (you yourself can read the Civil Code of the Russian Federation and you will understand everything).
  Simple partnership agreement: Civil Code of the Russian Federation, Part II: Article 1041. Simple partnership agreement 1. Under a simple partnership agreement (joint activity agreement), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or the achievement of another goal that does not contradict the law. 2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity. Article 1042. Contributions of partners 1. A contribution of a partner shall be deemed to be everything that he brings to the common cause, including money, other property, professional and other knowledge, skills and abilities, as well as business reputation and business ties. 2. The contributions of the partners are assumed to be equal in value, unless otherwise follows from the simple partnership agreement or actual circumstances. The monetary assessment of the partner's contribution is made by agreement between the partners. Article 1043. Common property of partners 1. The property contributed by the partners, which they possessed on the basis of ownership, as well as the products produced as a result of joint activities and the fruits and incomes obtained from such activities, shall be recognized as their common shared property, unless otherwise provided by law or a simple partnership agreement or does not follow from the essence of the obligation. 2. The accounting of the common property of the partners may be entrusted by them to one of the legal entities participating in the simple partnership agreement. 3. The use of the common property of the partners shall be carried out by their common consent, and in case of failure to reach agreement, in the manner established by the court. 4. The obligations of the partners for the maintenance of the common property and the procedure for reimbursement of expenses related to the performance of these obligations are determined by the contract of simple partnership. Article 1044. Conducting common business of partners 1. When conducting common business, each partner has the right to act on behalf of all partners, unless the simple partnership agreement establishes that the conduct of business is carried out by individual participants or jointly by all participants in the simple partnership agreement. When doing business together, each transaction requires the consent of all partners. 2. In relations with third parties, the authority of a partner to conclude transactions on behalf of all partners shall be certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement made in writing. Article 1046. General Expenses and Losses of Partners The procedure for covering expenses and losses associated with joint activities of partners is determined by their agreement. In the absence of such an agreement, each partner incurs expenses and losses in proportion to the value of his contribution to the common cause. The sample was sent to the mail.

Raisa Bogdanova

I'm passing the exam - help!

Lawyer's answer:
some nonsense who writes these tasks. why should the contract apply ?? ? Article 1041. Simple partnership agreement 1. Under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law. 2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity. Article 174.1. Specifics of calculating and paying tax to the budget when carrying out operations in accordance with a simple partnership agreement (joint activity agreement), a property trust agreement or a concession agreement on the territory of the Russian Federation Article 146 of this Code is assigned to the participant in the partnership, which is a Russian organization or an individual entrepreneur (hereinafter in this article - a participant in the partnership). When performing operations in accordance with a simple partnership agreement (a joint activity agreement), a concession agreement or a property trust agreement, a member of the partnership, concessionaire or trustee shall be assigned the duties of a taxpayer established by this Chapter. 2. When selling goods (works, services), transferring property rights in accordance with a simple partnership agreement (a joint activity agreement), a concession agreement or a property trust agreement, a member of the partnership, concessionaire or trustee is obliged to issue appropriate invoices in the manner established by this Code. 3. Tax deduction for goods (works, services), including fixed assets and intangible assets, and for property rights acquired for the production and (or) sale of goods (works, services) recognized as objects of taxation in accordance with this chapter, in accordance with a simple partnership agreement (a joint activity agreement), a concession agreement or a property trust agreement is provided only to a partnership participant, concessionaire or trustee in the presence of invoices issued by sellers to these persons in the manner prescribed by this chapter. When a participant in a partnership that maintains general accounting of transactions for tax purposes, a concessionaire or a trustee of other activities, the right to deduct tax amounts arises if there is a separate accounting of goods (works, services), including fixed assets and intangible assets, and property rights used when carrying out operations in accordance with a simple partnership agreement (a joint activity agreement), a concession agreement or a trust management agreement for property and used by it in the implementation of other activities.

Antonina Markova

Colleagues, good morning! The question about IPBOYUL is inside. I will make a reservation right away that I have never worked with trade, and even more so with individual entrepreneurs. Such a situation: There are two IPBOYL. One leases premises (sales area and a small warehouse) for organizing trading activities (seedlings, seeds, etc. fertilizers). Trade will be carried out directly by the second individual entrepreneur (at the expense of the first). QUESTION: How should their legal relationship be formalized so that the first individual entrepreneur avoids reporting to the maximum. Sublease is not prohibited by the agreement. For myself, I determined the possibility of concluding an agreement for the provision of services for a fee, under the terms of which the second individual entrepreneur undertakes for the first individual entrepreneur to carry out trading activities for a fee on his own in the premises provided by the first individual entrepreneur, as well as generate and submit reports to the tax authority. But I still don't understand something. There is some simple scheme that works everywhere. Please, tell me. Thank you !!!

Lawyer's answer:
Simple partnership agreement, read the Civil Code of the Russian Federation Chapter 55. Simple partnership Article 1041. Simple partnership agreement 1. Under a simple partnership agreement (joint activity agreement), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or the achievement of another goal that does not contradict the law. 2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity. Article 1042. Contributions of partners 1. The contribution of a partner is recognized as everything that he brings to the common cause, including money, other property , professional and other knowledge, skills and abilities, as well as business reputation and business relationships. 2. The contributions of the partners are assumed to be equal in value, unless otherwise follows from the simple partnership agreement or actual circumstances. The monetary assessment of the partner's contribution is made by agreement between the partners. Article 1043. Common property of the partners 1. The property contributed by the partners, which they possessed on the basis of ownership, as well as the products produced as a result of joint activities and the fruits and incomes obtained from such activities are recognized as their common shared property unless otherwise provided by law or a simple partnership agreement or follows from the essence of the obligation. The property contributed by the partners, which they possessed on grounds other than the right of ownership, is used in the interests of all partners and constitutes, along with the property in their common ownership, common property of partners 2. The accounting of the common property of the partners may be entrusted by them to one of the legal entities participating in the simple partnership agreement. 3. The use of the common property of the partners is carried out by their common consent, and in case of failure to reach agreement in the manner established by the court. 4. The obligations of the partners in the maintenance of the common property and the procedure for reimbursement of expenses related to the performance of these obligations are determined by the simple partnership agreement. that the conduct of business is carried out by individual participants or jointly by all participants in a simple partnership agreement. In case of joint business, the consent of all partners is required to complete each transaction. 2. In relations with third parties, the authority of a partner to conclude transactions on behalf of all partners shall be certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement made in writing. In relations with third parties, the partners cannot refer to restrictions on the rights of the partner who made the transaction to manage the common business of the partners, except for cases when they prove that at the time of the conclusion of the transaction the third party knew or should have known about the existence of such restrictions. 4. A comrade who has made transactions on behalf of all partners in respect of which his right to conduct the common business of partners has been limited, or who has entered into transactions in the interests of all partners on his own behalf, may demand reimbursement of expenses incurred by him at his own expense, if there were sufficient grounds to believe that these deals were necessary in the interests of all comrades. The comrades who have suffered losses as a result of such transactions have the right to demand compensation. 5. Decisions concerning the common affairs of partners are made by the partners by common agreement, unless otherwise provided by the contract of simple partnership. Article 1045. Right of a partner to information 1. Under a contract of simple partnership (agreement on joint activities), two or more persons (partners) undertake to combine their deposits and jointly act without forming a legal entity to make a profit or achieve another goal that does not contradict the law. 2. Parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity can only be individual entrepreneurs and (or) commercial organizations.

Mikhail Rodygin

Partnership agreement or profit sharing? how to formalize the relationship ?. There is a certain company LLC "Horns and Hooves" on the one hand and on the other there is a Physical Person (Ivan Ivanovich Ivanov), what kind of contract an individual must conclude with LLC in order to get the following: 1. Divide to divide the profit (50%) from the automation projects given in LLC Ivanov II. Ivanov II is neither an employee nor a founder of LLC "Horns and Hooves" 3. Ivanov will take part in the automation projects themselves at an hourly rate.

Lawyer's answer:
Based on the initial data on your proposed goals, the following can be explained: NT === 1. Divide to divide the profit (50%) from the automation projects given in LLC Ivanov IIKTs === According to clause 2 of Art. 1041 of the Civil Code of the Russian Federation, only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity. Thus, A simple partnership agreement between RiK LLC and II Ivanov, the purpose of which is to make a profit as a result of the implementation of certain projects, cannot be concluded under pain of the invalidity of such an agreement. NC === 2. Ivanov II is neither an employee nor a founder of LLC "Horns and Hooves" KC === Option - the conclusion of an employment contract between Ivanov II and LLC RiK for the duration of a certain work. The amount of wages shall be established by agreement of the parties: piece-rate, piece-rates, etc. NTs === 3. Ivanov will take part in the automation projects themselves at an hourly rate. KC === This condition is typical for labor contracts. The mechanism for the participation of employees in the "Profit" can be provided for by local regulations for LLC RiK. But this is extremely rare. I do not think that LLC RiK will agree to the adoption of such a document for the sake of I. I.Z. Ivanov alone. NS. It is possible to recommend concluding an agreement for the provision of services for remuneration between LLC RiK and Ivanov I. I, in which it is unrealistic to try to envisage both the rights and obligations of the parties and the amount of remuneration of Ivanov I. I. Within the framework of this resource, it is unrealistic to give more constructive recommendations. Good luck

New edition of Art. 1041 of the Civil Code of the Russian Federation

2. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activity.

Commentary on Art. 1041 of the Civil Code of the Russian Federation

1. A simple partnership agreement is one of the most ancient types of civil law agreements, used both in entrepreneurial activity and to achieve economic, non-commercial goals. If in traditional mutually binding contracts (sale and purchase, storage, hiring, etc.) the rights and obligations of the parties bear a kind of counterpart and correspond to each other, then in joint activities the comrades combine property and actions to achieve a common goal for all participants ( for example, construction). The presence of a common economic goal determines the specifics, as well as the continuing nature of the simple partnership agreement. The term "comrade" in the contract under consideration, in contrast to the one used on a daily basis, has a special, legal meaning.

2. A feature of a simple partnership agreement (on joint activity) is its multilateral nature. Participants in joint activities conclude a mutual agreement on joint activities or, in other words, form a simple partnership. Mutual rights and obligations arise for each participant in relation to the others.

By its legal nature, a simple partnership agreement is:

Consensual;

Compensated;

Multilateral (two or more parties to the agreement);

Fiduciary (confidential).

A simple partnership agreement is one of the most ancient legal institutions that have come down to us from Roman law. It was he who served as the prototype for modern commercial organizations. A simple partnership was the first legal instrument that made it possible to combine property and capital for the joint economic activity of two or more persons, each of whom hoped in this way to reduce costs or increase their profits.

G.E. Avilov

Arbitrage practice.

Meanwhile, Article 1041 of the Civil Code of the Russian Federation establishes that under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law.

Thus, a feature of a simple partnership agreement is that the parties under it have an obligation to combine contributions and act jointly, but there are no obligations to transfer something from one partner to another into ownership.

In accordance with Article 1043 of the Civil Code of the Russian Federation, the property contributed by the partners, which they possessed on the right of ownership, as well as the products produced as a result of joint activities and the fruits and incomes obtained from such activities are recognized as their common shared property.

Since the monetary contribution to be made under the simple partnership agreement becomes the common shared property of the partners, the party to the agreement does not have the right to enforce collection from the other side in its favor of the amount of the contribution, since this contradicts the nature of the agreement of this type. It is impossible to recognize this claim as a way of compensation for losses.

The penalty provided for by the simple partnership agreement for missing the deadline for fulfilling financial obligations is also not subject to collection in this case, since the partner's obligation to join the contribution is not a financial obligation to another partner (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 08.08.2000 N 7274/99).

Based on the requirements specified in clause 1 of Art. 1041 of the Civil Code of the Russian Federation, non-profit organizations and institutions may conclude agreements on joint activities, if these agreements do not pursue the goal of carrying out entrepreneurial activities.

At the time of the conclusion of the agreement on joint activities, the city sports society did not intend to sell the part of the building due to it. The named agreement with a third party was concluded by the defendant two years after the signing of the agreement on joint activities. It was an agreement for the sale of the future property of the defendant and was due to a reduction in the staffing of the city sports society and the elimination of the need for additional premises. Therefore, there is no reason to believe that the contested agreement was concluded for the purpose of carrying out entrepreneurial activities (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 25, 2000 N 56).

Another commentary on Art. 1041 of the Civil Code of the Russian Federation

1. By its legal nature, a simple partnership agreement is consensual, mutual, multilateral, fiduciary and reciprocal.

This agreement is consensual, since it is recognized as concluded only at the moment the parties reach an agreement on all essential conditions.

The reciprocity of a simple partnership is expressed in the fact that each of the comrades has a set of rights and obligations in relation to each other. Any participant as a creditor has the right to demand from the other partners the proper performance of obligations, simultaneously acting as a debtor in relation to them.

A simple partnership can be formed only on the basis of an agreement concluded by at least two participants (partners). The number of parties to the agreement is unlimited, therefore the said agreement is multilateral.

A simple partnership agreement is an obligation of a personal fiduciary nature (fiduciary transaction). In this regard, any of the partners has the right to terminate the performance of the contract unilaterally without announcing the reasons.

A simple partnership agreement is of a compensatory nature, expressed in the fact that in order to achieve a common goal, each partner must make an appropriate property contribution (clause 1 of article 1041 of the Civil Code of the Russian Federation). In addition, a comrade who has fulfilled the obligations of joint activities has the right to use the common property, the result of joint activities to satisfy his interests in accordance with the contribution made.

2. In accordance with clause 1 of this article, the following essential conditions of a simple partnership agreement can be distinguished:

a) the need to combine the contributions of participants;

b) joint actions of comrades;

c) the presence of a common goal of the comrades, towards the achievement of which their actions are directed. That is why the legislator identifies a simple partnership with joint activities.

For certain types of simple partnership agreements, the list of essential conditions may be expanded by law. So, in the agreement on the creation of a joint stock company in accordance with Art. 98 of the Civil Code and Art. 9 of the Federal Law "On Joint Stock Companies", the conditions for:

the procedure for the implementation of joint activities by partners to establish a company;

the amount and procedure for their payment;

on the rights and obligations of founders to create a society.

In the agreement on the creation of a financial and industrial group (a kind of simple partnership) in accordance with Art. 7 of the Federal Law of November 30, 1995 "On Financial and Industrial Groups", the following conditions must be met:

on the name and objectives of the financial and industrial group;

on the procedure and conditions for the pooling of capitals;

on the establishment of a central company of a financial and industrial group, authorized to conduct business;

on the procedure for the formation and powers of the Board of Governors of the financial and industrial group;

on the procedure for amending the composition of the members of the financial and industrial group;

on the duration of the contract.

3. A simple partnership is not a legal entity and is not subject to registration in accordance with Art. 51 GK. At the same time, sometimes the legislator establishes a requirement for registration of a simple partnership. So, in accordance with Art. 5 of the Federal Law "On Financial and Industrial Groups", financial and industrial groups must be registered. However, the absence of such registration does not entail the invalidation of the contract, but only the failure to provide such a partnership with a preferential legal position of the financial and industrial group.

4. The form of a simple partnership agreement must comply with the general requirements of the legislation of the Russian Federation on the form of transactions (Articles 158 - 165 of the Civil Code of the Russian Federation).

5. Individuals and legal entities (both commercial and non-commercial) have the right to act as participants in a simple partnership agreement.

The Russian Federation, constituent entities of the Federation and municipal formations may also act as participants in a simple partnership agreement.

The legislation does not prohibit the participation of one person as a partner in several simple partnerships at once. An exception to this rule is Art. 3 of the Law "On financial and industrial groups", which does not allow organizations to be part of more than one financial and industrial group.

State and municipal unitary enterprises have the right to conclude contracts of simple partnership only with the consent of the owner (Article 18 of the Federal Law of November 14, 2002 "On State and Municipal Unitary Enterprises").

6. Each participant of the partnership is obliged to make a contribution. An agreement that does not provide for such an obligation is not a simple partnership agreement. Inclusion in art. 1041 of the Civil Code of instructions on the combination of deposits - an essential condition of the simple partnership agreement (Article 421 of the Civil Code of the Russian Federation).

In this regard, a participant in the partnership cannot be released from the obligation to make a contribution. At the same time, the legislator does not exclude the possibility of establishing for individual partners a special procedure for introducing it (first of all, the deferral and installment plan for the fulfillment of such an obligation).

7. If the agreement is concluded for entrepreneurial activity, only individual entrepreneurs and (or) commercial organizations can act as its participants (clause 2 of article 1041 of the Civil Code of the Russian Federation). This conclusion is confirmed by clause 3 of the Review of the practice of resolving disputes related to contracts for participation in construction (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 25, 2000 N 56 (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. N 9. S. 85)), according to which institutions and non-profit organizations cannot be parties to an agreement on joint activities only if such an agreement is concluded for entrepreneurial activity.