By Jesús Alfaro Águila-Actual
The bulk doctrine has historically thought-about the restricted legal responsibility of the companions for company money owed as a function of company authorized character. This place assumes that there could be a distinction between the authorized character of a partnership and that of a company – a capital partnership, for instance -. Each could be completely different. There’s discuss of straightforward authorized character – that of partnerships – and sophisticated – that of public restricted firms – and the distinction would lie within the accountability of the companions for the money owed of the social patrimony within the first – communication between the social property and that of the companions – and restricted legal responsibility – straighter incommunicado patrimonial – within the latter.
For my part, this understanding of the variations between partnerships and capital firms is just not right. Authorized character is a unitary authorized predicate. And it’s predicated in the identical sense of a civil society and a joint-stock firm (or, for that matter, of a basis or an affiliation). A heritage is personified or not it’s. And it’s personified or not no matter whether or not or not the fairness of the companions or members of the company are accountable for the money owed of the social or company fairness (does the inspiration restrict the legal responsibility of the founder?)
Restricted legal responsibility is due to this fact not a component of authorized character. It’s not required neither is it not required, for an property to be personified, that different estates reply or not reply to their money owed. A patrimony is personified if it may be attributed rights – credit and obligations – patrimonial money owed (topic of imputation, authorized capability) and whether it is endowed with the capability to behave (company). That different individuals reply for these money owed which might be attributed to that patrimony (straighter different patrimonies) or that the patrimony on whose account they have been contracted responds completely to those money owed is just not one thing that modifies the content material of the authorized character.
What’s the origin of all this confusion? For my part, restricted legal responsibility has been a poorly outlined piece by our doctrine as a consequence of two analytical errors.
The primary comes from the dragging of “presentist” conceptions of medieval and Fashionable Age mercantile firms, that’s, from using collective societies as a ‘easy’ mannequin to investigate joint-stock firms, with out realizing that the joint-stock firm It doesn’t have its origin within the collective society however in a mix of the company with the naval condominium (see, broadly, ALFARO, InDret, 2016, part 3). And it’s of the essence of any company that the companions don’t reply with their patrimony of the money owed of the company. Neither the neighbors have been accountable for the money owed of the town, nor the monks for the money owed of the monastery, nor the scholars for the money owed of the college. It was due to this fact unthinkable that the shareholders of a 17th or 18th century company would reply with their fairness for the money owed of the company – company. However for the reason that basic companions did safe social money owed with their property, the legal-mercantile literature of the 20 th century deduced from it, quite the opposite, the existence of a privilege that the legal guidelines of companies would have granted to the “capitalists” by establishing that the shareholders wouldn’t reply with their patrimony of the company money owed.
This conclusion quite the opposite it’s primarily based on a second error that now reaches into the character of the legal responsibility of basic companions for company money owed. The legislator imposed this accountability as an addition to that of the corporate – not in useless is the place of the final accomplice assimilated to that of a guarantor of the corporate – as a result of excessive prices (“readability”) that it had for third events that have been associated With the collective society, distinguish the social patrimony from the person patrimony of the companions in pre-contemporary occasions wherein there was no obligation of accounting or registration or different mechanisms that right this moment significantly cut back the prices of performing in site visitors on behalf of non-individual patrimonies .
So there was no want, from the standpoint of authorized coverage, to increase this “authorized assure” of the companions of the collective to the members of a company devoted to the train of commerce such because the company whose identification ( of its property) by potential counterparties didn’t current excessive prices.
The confusion that the conception of restricted legal responsibility of shareholders as a “privilege” has introduced with it has led to every kind of constructions to restrict it for the advantage of collectors of economic companies with out realizing that, not solely does it not suggest a privilege Within the etymological sense of the phrase, – it’s slightly the final rule – however to make the shareholders’ fairness accountable for the fee of the money owed of the company fairness would imply granting a windfall revenue – an undeserved profit – to the collectors of the joint-stock firm who, once they contracted with the social property, needed to rely completely on mentioned property as collateral. Relating to non-contractual collectors (non adjusting collectors within the jargon of the North American literature on the matter), the standards for figuring out the patrimony liable to the sufferer of the harm – and, due to this fact, the one that may be attacked to acquire compensation for the harm – are autonomous and never seen affected by the separation between the fairness of the company and the fairness of the shareholders (I’ve defined the latter in some element in ALFARO, J., Limited Liability of Shareholders: Status Quaestionis, 2007). To provide only one instance to complete: if a passerby suffers accidents because of a pot falling from a company constructing, the sufferer could assault not solely the property of the company that owns the constructing, but in addition that of the staff and directors of the constructing. this one which that they had the obligation to ensure the innocuousness of the buildings owned by it.