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NEWSLETTER 2013
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partners assume liability for the whole business against the project owner
rather than being liable for certain parts of the business. Even if the
business as a whole does not fall into the area of activity or expertise of
a partner and the work is shared in interior-relation, the partners shall be
severally liable to the project owner for the entirety of the work.
The conclusion of a written contract between the parties is important
in order for the Business Partnership to be established to rely upon strong
basis. A Business Partnership agreement may explicitly provide that each
partner shall be jointly and severally liable for the performance of the
commitments and businesses within the scope of the contract concluded
with the project owner and of the obligations arising from that Contract
but headed towards the partnership.
A Business Partnership is a special type of Joint Venture, which is
solely depending on an agreement. In other words, a Joint Venture is a
broader term which includes Business Partnerships.
The doctrine defines a Joint Venture as follows: “
An establishment
of a commercial partnership or a contractual agreement joining together
two or more real or legal parties which are independent from each other
legally and economically, for the purpose of executing a particular
business or a continuous activity in order to generate income. All parties
agree to be severally liable for the risks of such activity.”
2
Within the scope of the above definition, Joint Venture agreements are
separated into two as “Joint Venture Solely Depending on an Agreement”
and “Joint Venture Through Capital Participation”. Under the Joint
Venture Solely Depending on the Agreement, the relationship is merely a
law of obligations agreement concluded between the parties; fulfillment
of the participation stipulations by the partners is sufficient for achieving
mutual purpose and the establishment of a commercial company with
legal personality is not required. In a Joint Venture model through Capital
Participation, the parties joining the venture by concluding a Joint Venture
agreement first and establishing a partnership relation which qualifies as
an ordinary partnership; subsequently establish a commercial company
with legal personality or join an already-existing partnership as such.
2
Barlas
, p. 262, 263.