It is worth noting that the possibility of obtaining an enforcement order against partners applies only to companies in which the partners are liable for the company’s obligations with their entire assets. This is because, according to the wording of Article 778(1) of the Code of Civil Procedure: “An enforcement order issued against a general partnership, a professional partnership, a limited partnership or a limited joint-stock partnership, the court shall grant an enforcement clause against a partner who bears unlimited liability with all their assets for the company’s liabilities, if enforcement against the company proves ineffective, as well as where it is obvious that such enforcement will be ineffective. This does not apply to a person who, at the time of the commencement of proceedings in the case in which an enforcement order was issued against the company, was no longer a partner therein.” At the same time, the creditor may direct enforcement against one, several or all partners, against any asset of theirs.
As is clear from the provision cited above, it is not necessary to obtain a decision from the Bailiff regarding the discontinuation of enforcement proceedings on the grounds of futility. If it is obvious that the company has no assets from which the Creditor could be satisfied, it is not necessary to carry out enforcement against the company. In such cases, it is sufficient to demonstrate this fact by presenting the relevant documentation. For example, a statement from the bailiff who previously conducted proceedings against the company, the fact of unsuccessful enforcement proceedings conducted under another enforcement order of the creditor, or a list of the company’s assets or its balance sheet may serve to substantiate the futility of enforcement.
When considering the creditor’s application, the court will not verify the validity of the claim against the company. It will examine only two statutory conditions:
- whether the partner against whom the enforcement order is to be issued is liable with all their assets for the company’s liabilities;
- whether enforcement against the company’s assets has proved ineffective or it is obvious that it will be ineffective.
Such enforcement proceedings generally proceed efficiently, and the cost of applying for an enforcement order against the company’s partners is relatively low – amounting to PLN 50 (Article 71(4) of the Code of Civil Procedure).
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HWW Hewelt Wojnowski Lindner i Wspólnicy is a Warsaw law firm advising businesses and public entities. We combine experience in commercial law, energy, tax, data protection and litigation to deliver solutions tailored to our clients’ business realities.
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