A comparative study of partnership law

A historically based international survey

Private Law Gazette 1/2021 – Until recently, an examination of the field of partnership law would have led one to conclude that there were hardly any indications of an international orientation. "There was a genuine research gap," says Institute Director Holger Fleischer, who, with his working group on business and economic law, undertook a multi-year project to render a comprehensive panorama of comparative partnership law.

In Germany, a partnership may come in the form of a private corporation (Gesellschaft bürgerlichen Recht – GbR), a limited partnership (Kommanditgesellschaft – KG) or a general partnership (offene Handelsgesellschaft – OHG). What is it like in other jurisdictions? Where can one identify parallels or contrasts? “An international map of partnership law has yet to be drawn,” says Holger Fleischer.

“The gaps in the comparative examination of OHGs, KGs and GbRs become particularly clear when you consider the existing body of comparative literature on corporate law.” One reason for this, observes Fleischer, is that partnership law has thus far not been harmonized at the EU level, and consequently there have not been any starting points for alignment projects.

Committed team performance

Alongside a transnational assessment of the topic, the object of the research project was also to take a historical inventory. The result is a 500-page handbook that is divided into a general report and eleven country reports. The project also led to roughly 20 journal articles that comparatively analyse numerous institutions and figures encountered in partnership law. “These research achievements demonstrate our enormous potential: All participants in the project are current or former members of our working group on business and economic law,” sums up Fleischer, who initiated and led the project.

A historical longitude

While the corporate forms of an AG and a GmbH are inventions of the 19th century, the roots of partnership law reach far back into European legal history. “What may seem like a homogeneous legal notion in fact embodies three independent lines of evolution,” explains Fleischer. The societas, which emerged under Roman law over 2000 years ago, went through numerous stages of development before it finally took on the settled form of a GbR in the codifications of the 18th and 19th centuries. The KG started as a commenda in the maritime trade of the Italian city-states of the High Middle Ages. The origins of the OHG are found partly in late medieval Tuscany, where a legal form called a compagnia developed. Its name is derived from cum pane, a term essentially meaning a “bread community” and referring to the family and house associations on which it is based.

An international latitude

Around 1900, domestic and foreign partnership law appeared as a multifaceted tableau of organizational forms that had absorbed and processed different strands of tradition. After a century-long phase of maturation, development proceeded more quietly for several decades before an international reform movement began. In his general report introducing the handbook, Fleischer, first takes stock of the legal history of partnership law and then highlights legislative reforms and proposals made over the last 50 years in Europe and the United States. This is followed by detailed country reports on the legal situation in Austria, Switzerland, France, Italy, Spain, Belgium, the Netherlands, Sweden, Russia, Great Britain and the USA.

Idea generator for legislative reform

Shortly after the Institute project began, the German legislature took first steps towards a fundamental reform of partnership law. The government draft of an Act to Modernize Partnership Law, from January 2021, refers to a total of eight essays written by the business and economic law team led by Fleischer.

New research perspectives

The resonance of the Institute project extends well beyond German legislative reform: “Our foundational research reveals new and promising perspectives that await development. A new and interdisciplinary field of research – one in which company law, legal history and entrepreneurial history fruitfully interact –  is emerging. Our academic workbench is filling fast with new areas of inquiry.”


Holger Fleischer, Personengesellschaften im Rechtsvergleich, C.H. Beck, München 2021, XXX + 483 pp.

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