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Dutch Supreme Court provides further guidance on the question if and when a limited partner in a limited partnership will be jointly and severally liable for the debts and obligations of the limited partnership

In its decision of 4 November 2016, the Supreme Court again rules on the question if and when a limited partner in a limited partnership will be jointly and severally liable for the debts and obligations of the limited partnership, in the event that a limited partner violates the prohibition in Article 20(2) of the Dutch Commercial Code for limited partners to exert management authority.

The Supreme Court first of all confirms its decision of 29 May 2015 (HR 29 May 2015 ECLI:NL:HR:2015:1413, NJ 2015/380). In that case, the Supreme Court had decided that in assessing whether a limited partner violates the prohibition for limited partners to exert management authority, relevant factors may be (i) whether a third party was or should have been aware of the capacity of the limited partner, and (ii) whether the limited partner has acted imputably.

In its decision of 4 November 2016, the Supreme Court further specifies its decision of 29 May 2015, by assessing that the mere presence of a personal union between the (indirect) director of the limited partner and the (indirect) director of a general partner does not automatically result in a joint and several liability of the limited partner for the debts and obligations of the limited partnership. However, the presence of such a personal union may be relevant in answering the question whether third parties could have reasonably misinterpreted the capacity of the limited partner. The Supreme Court introduces a rebuttable presumption that a person who exerts management authority and who is authorized to represent both a general partner and a limited partner is presumed to have acted on behalf of the general partner.  

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