Liability of the Retired Partner for Contribution Debts of the (Former) General Partnership

Facts

- In 1994, the general partnership X. was founded with the two partners H. and R. On May 12, 2003, H. withdrew from the partnership and R. continued the business as the sole proprietorship S. In December 2005, the sole proprietorship S. was declared bankrupt. - The Compensation Fund of the Canton of Bern demanded compensation from H. for unpaid social security contributions for the years 1998 to 2003 in the amount of CHF 85,919.85. - The Administrative Court of the Canton of Bern dismissed H.'s appeal. H. then filed a public law appeal with the Federal Supreme Court.

Considerations

- The Federal Supreme Court states that the retired partner H. is subsidiarily and personally liable for the debts of the (former) general partnership pursuant to Art. 568 para. 3 CO, if one of the former partners continues the business as a sole proprietorship. - This liability of the retired partner also covers AHV contribution debts. The Federal Supreme Court is changing its previous case law on this point (ATF 119 V 389). - The claim for damages under Art. 52 AHVA is to be distinguished from the contribution claim. It only arises if the contribution claim can no longer be asserted, e.g. in the event of the employer's insolvency. - The claim for…