In practice, the situations arising involve:
- predominantly the succession of one partner
- more rarely the succession of all partners.
Departure of all partners
If all partners sell, the situation is the same as that involving a sale by a sole trader.
Departure of one partner
If a previous partner transfers his entire share to a successor, the following prerequisites must be met:
- the partnership agreement must make express provision for the entry and departure of partners (or a continuation clause)
- approval of the remaining partners
- departure of the previous partner
- termination of the partnership for the departing partner, notwithstanding its continuation for the remaining partners (Article 576 of the Swiss Code of Obligations)
- claim for redemption against the partnership (Article 580 of the Swiss Code of Obligations)
- entry of the new partner
- obligation to invest a capital amount in the partnership in line with the stake in the partnership.
Settlement of the redemption claim
The departure of a partner establishes entitlement to a claim to redemption (Article 580 of the Swiss Code of Obligations).
Basis for assessment
Unless specified otherwise in the partnership agreement, the redemption claim will be determined as follows:
- stake in the capital as reported in the accounts
- share of hidden reserves
- share of any goodwill.
Nature of assessment
- at going concern values and not liquidation values (see BGE 93 II 247).
- high-profit businesses: going concern value higher than liquidation value
- asset-rich businesses: going concern value may be lower than liquidation value