Silent partnerships - hybrid legal form between contract and organisation?

• Applicant: Dr. Anja Sophia Schwemmer
• Subject Area: Private Law
• Term: since 2022
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 508231115

The DFG project is dedicated to the "nicht rechtsfähige Gesellschaft" (nrG, probably best translated as "silent partnership"). The nrG serves as a legal form not only for occasional cooperation between private individuals, but also for flexible business cooperations without the formation of a corporate structure. In the digitalised economy, the importance of such modern, heterarchically structured forms of cooperation is constantly increasing. The research project aims to sharpen the dogmatic contours of the nrG in civil and tax law on the basis of a comprehensive functional analysis, taking into account economic and legal sociological findings. As a preliminary result, it can be stated that the nrG serves to structure so-called hybrid forms of governance between exchange contract and organisation. It can be classified as a (multilateral) cooperation agreement with organisational elements. The category of the cooperation agreement addressed here still awaits academic analysis. This analysis can draw on insights gained from game theory and sociology on the phenomenon of cooperation. The project also examines the nrG from a historical and comparative perspective. The analysis of the historical development of the civil partnership was not intended in the original proposal, but on closer examination proved to be indispensable to understand long-disputed doctrinal issues. In this respect, it was possible to work out how, in the course of the creation of the Civil Code, a uniform legal form without any further differentiation between different types of partnerships initially became law. It was not until the German partnership (Gesellschaft bürgerlichen Rechts, GbR) was held to have legal capacity that the GbR was differentiated into two essentially different legal forms: the GbR with legal capacity on the one hand and the nrG on the other. The functional and historical analysis has thus identified two central approaches that will guide the further doctrinal studies: (1) the categorisation of the nrG as a cooperation agreement and (2) the emancipation of the nrG from the GbR with legal capacity. Compared to the initial proposal, the following additions have been made, which require additional time: (1) broadening the perspective to include not only forms of business cooperation, which continue to be the main focus, but also use cases of the nrG in the private sector (domestic partnerships between spouses, private occasional partnerships), (2) comprehensive functional analysis with a review of economic and lsociological findings on hybrid forms of governance and relational contracts, (3) analysis of the historical development of the nrG, (4) analysis of the category of the cooperation contract, taking into account game theory and sociological findings. .

• DFG Programme: Research Grants