Exclusion of a Partner Placed Under Special Guardianship from Partnerships

Sanction or Protection in the Context of the Digitalisation of Corporate Decision-Making?

Abstract

The total (and, where applicable, permanent) deterioration of the mental health of a partner with unlimited liability in a general partnership or limited partnership may trigger the activation of a harsh judicial mechanism: their exclusion, on the ground of having become incapable. In this study, we will examine the legal institution of exclusion through the lens of two distinct functions. For the partner placed under the special guardianship measure, exclusion constitutes a sanction. However, for the company, it is a necessary protective measure that ensures the continued operation of the economic activity, shielding it from a partner who could jeopardize corporate relations. We will emphasize that exclusion has a mixed role: it only appears punitive, while its true purpose is to protect the company’s assets, the interests of the other partners, and those of third parties. Yet in the digital age, even partnerships, traditionally recognized as intuitu personae structures, have adapted their decision‑making procedures. This raises the question of whether the exclusion of an incapable partner is still justified, given that digitalization has already created an indirect form of exclusion for partners with unlimited liability through the implementation of predominantly digital decision‑making mechanisms. We will highlight the admissibility conditions of the exclusion action with reference to art 222(1)(b) of Law No 31/1990 on companies. In addition, we will emphasize the legal consequences of excluding a vulnerable partner from the company, from the perspective of their rights and obligations. The research will also include an analysis of relevant case law, with the aim of formulating de lege ferenda proposals.