Partner Responsibility in the Professional Company: Study in Kuwaiti Law
Dr. Ayedh Rashed Almarri
Associate Professor of Commercial Law Law Dept. – College of Business Studies PAAET – Kuwait
The research deals with the responsibility of the partner in the professional company, especially since the professional company is a new form of companies that the legislator has introduced in the new companies law No. 1 of 2016. The research has been divided into: an introductory segment and two parts as follows:
In the introductory segment we discuss the definition of the professional company as well as its establishment procedures; as the legislator required that the professional company takes one of the four forms of companies stipulated in the companies law: closed joint stock company, limited liability company, solidarity company, or simple recommendation company.
In the first part we examine the general provisions on liability in companies that the professional company may be founded upon.
In the second part we deal with the provisions of the professional company, then we deal with the issue of the partner entering or leaving the professional company, as in the event that the partner lost the authority to practice the profession, or the death of one of the partners, or in the event that the partners desire to dissolve and liquidate the professional company. We also deal with the responsibility of the partner for his professional error, the company’s professional responsibility for compensation to others, and the extent to which the partner in the professional company can start working on his own account, or concealed behind another person.
We reached the following results: 1- The professional company should be promoted in a way that eliminates ambiguity from its provisions and encourages professionals to establish such companies; because – to our knowledge – there is still a fear of establishing professional companies by professionals in Kuwait. 2- We recommend that the legislator controls the issue of the partner›s unlimited liability for his professional mistake towards the professional company; as the legislator or the regulation did not clarify the magnitude of the error that the partner is subject to accountability according to him, does it have to be a serious mistake, or is it sufficient for a slight mistake to determine the responsibility of the partner?
The research recommends that the legislator covers the liability of the partner for professional error towards the company in the insurance policy that required its work against negligence or professional errors that occur from the partners or one of its employees, which was limited to compensating others only.
The research also recommends that the legislator stipulates a penalty for violating the text contained in Article (50) of the Executive Regulations of the Companies Law, according to which the partner is prohibited from being a partner in more than one professional company, and from practicing the profession on his own account, or concealed through another person.
Keywords: professional mistake, practicing the profession, serious mistake, slight mistake, commercial companies.