The dissolution as “death” of the mercantile society

By Jesús Alfaro Águila-Actual *

The doctrine elaborated within the XIX century noticed within the dissolution the “demise” of the mercantile society, that’s, it approximated it to the succession explanation for demise. Up to date doctrine finds it improper as a result of this comparability implies, in its opinion, supposing that with the dissolution not solely the compulsory bonds between the companions are terminated however that the authorized character can also be extinguished, that’s, the social patrimony disappears and it’s evident that the authorized particular person, not like deceased human beings, persists through the liquidation.

Nonetheless, the analogy between the dissolution of an organization and the demise of a person is right whether it is restricted to the patrimonial perspective. In each circumstances, the Heritage (the inheritance or hereditary patrimony and the social patrimony respectively) persists differentiated to demise or dissolution. And in each circumstances it’s essential to proceed to its liquidation within the strict sense, that’s, to pay the money owed that weigh on that patrimony, earlier than distributing it between the heirs or between the companions (liquidation in a broad sense). Essentially the most vital distinction between the 2 is that there’s succession within the hereditary patrimony and there’s none within the company patrimony when the corporate is dissolved. The vacation spot of the inheritance is to be confused with the property of the inheritor. The vacation spot of the company property when the corporate is dissolved (due to this fact, not within the occasion of a merger) is to be distributed among the many companions. The inheritor succeeds the deceased. The companions don’t succeed the corporate within the possession of the property, they merely purchase, the place applicable, property. Therefore it follows that the liquidation of the inheritance will not be a needed consequence of the demise of the deceased, however it’s the liquidation of the social patrimony, of the company dissolution.

If common succession is left apart, the parallels between the liquidation of the inheritance (primarily based on the mannequin of acceptance for the advantage of stock) and the liquidation of a social patrimony are exceptional. In each circumstances, (i) the property is positioned beneath the management of somebody who’s commissioned to pay the money owed and distribute the rest. The “liquidator” of the inheritance is, usually, the inheritor himself and the liquidators of the social property are, usually, the social directors themselves or the companions in partnerships. (ii) The battle of curiosity between heirs arises in the same means if there are a number of heirs and just one or some handle as between the companions within the liquidation. (iii) The administration begins with the preparation of a list of the hereditary property, which can also be the primary obligation of the liquidators; (iv) the illustration of the hereditary patrimony corresponds to the inheritor, as corresponds to the liquidator the illustration of the social patrimony in liquidation; (v) the inheritor, because the social liquidator, has to pay the credit after which the legacies – artwork. 1027 CC -; (vi) the legatees, just like the companions, danger having to return a part of what they acquired if collectors seem after the cost of the legacies and the inheritance property usually are not sufficient to fulfill them. (vii) Whether it is essential to promote hereditary property to pay collectors, they are often bought – artwork. 1030 CC – and the misappropriation of the proceeds makes you lose the advantage of stock as within the company liquidation by way of totally different establishments. (viii) The inheritor, as supervisor, responds to legatees and collectors in the event that they haven’t been capable of obtain all of their legacies and credit as a result of inadequate inheritance (arts. 1031-1032 CC). (ix) The stock revenue loss penalty is, mutatis mutandis, the equal of the legal responsibility of the liquidators ex artwork. 397 LSC as a result of it interprets into the “private” accountability of the inheritor – that’s, together with his private property – for the money owed of the inheritance or the legacies which have been unpaid as a result of his negligent administration of the liquidation of the inheritance.

However the place the principle parallelism between inheritance and social property is manifested within the liquidation section is within the legislator’s concern in each circumstances to guard collectors in opposition to the chance of being deprecated in his proper in opposition to the heirs and legatees and their collectors, within the case of the demise of his debtor or in opposition to the companions within the case of the dissolution of his debtor. And this concern is professional within the case of succession explanation for demise, as a result of since there’s common succession, the demise of the debtor doesn’t essentially trigger the opening of the liquidation and the heirs and legatees can enter to regulate – personal – the deceased’s property earlier than it has been liquidated, that’s, the deceased’s money owed have been paid. In German it is rather graphically stated that “the primary inheritor is the creditor”. The creditor safety method is, within the case of inheritance, that of preserve collectively the property of the deceased and separate from the property of the inheritor so long as its liquidation has not occurred no less than within the strict sense, that’s, the money owed that weigh on that patrimony have been paid or so long as the heirs haven’t assumed accountability with all their patrimony for stated money owed. And this method is extensible mutatis mutandis upon the dissolution of an organization: (i) the company property have to be transferred by way of cost of its liquidation price to the companions; (ii) the authorized character of the corporate persists till the distribution to the companions and (iii) it can’t be distributed among the many companions if all the company money owed haven’t been paid.

In each circumstances, and paraphrasing Peña, (The inheritance and debts of the deceased, Granada, third ed, 2009) is about managing property in liquidation and in each circumstances, the corresponding laws are meant to guard these within the particular liquidation of the identical: the collectors of the property first and the recipients of the property that type it, second.

The conclusion can’t be anticipated. The outdated doctrine was not improper when making use of the foundations of succession analogically to company dissolution and liquidation explanation for demise (If it was improper, it was improper in one other respect. Maybe it was in pretending that there may very well be co-ownership over a heritage when the reality is that subjective rights over property similar to property or co-ownership and different actual rights are exercised over singular property). By specializing in the continuity of authorized character, modern doctrine has obscured the that means of dissolution as termination (of obligatory results) of the partnership settlement. The dissolution as termination of the partnership contract has two transcendental results. The primary is that, just like the termination of any contract, it obligates prima facie to liquidate the patrimonial relations which have been generated because of the celebration of the identical. The second and maybe extra essential is that how actions opposite to the creation of the proprietor of the patrimony, dissolution makes disappear what’s particular person concerning the topic proprietor of the property. With no partnership contract, the persistence of “that” social patrimony is meaningless as a result of heritage not serves the aim that led to its structure, a typical objective that determines its group and that supplied him with the partnership contract particularly entered into by the events.

* This entry is a bit of the article entitled “The dissolution as termination of the partnership contract: idea and a few sensible penalties” printed within the number 61 of the Revista de Sociedades

Photograph: Miguel Rodrigo

360 gaze