By Jesús Alfaro Águila-Actual *
I’ve argued that dissolution is the termination of the partnership contract and, due to this fact, that of the binding ties between the companions. Each conclusions derive from seeing Firm Legislation as composed of two items: one that’s a part of the Legislation of Contracts and the opposite of the Legislation of Issues. The dissolution is a part of the Contract Legislation piece however the dissolution isn’t, as the bulk doctrine maintains, a novation, nor a modification of the widespread goal of the partnership settlement or, merely, the opening of the liquidation part.
Because the termination of the partnership contract, the dissolution has two transcendental results: it obliges prima facie to liquidate the patrimonial relations which have been generated on account of the celebration of the partnership contract (liquidation of social belongings) and the way actions opposite to the creation of the proprietor of the patrimony (to the personification of the social patrimony), makes disappear what’s particular person in regards to the topic proprietor of the property. The patrimony persists till its liquidation however, with the dissolution, what individualizes it (the widespread goal for which it was established) disappears as a result of the widespread goal ceases to be that of the companions.
These two results of the dissolution are essential for the examination of the character of the reactivation (artwork. 370 LSC). That is usually outlined as “the return to lively life” of society or the revocation of the dissolution settlement. Briefly, the reactivation paralyzes the liquidation if it had begun, reestablishes the necessary hyperlinks between the companions who resume the exploitation of the company goal.
For my part, whether it is accepted that dissolution implies the termination of the partnership settlement, it follows that reactivation essentially implies the simplified celebration of a brand new partnership settlement between all or a part of the companions of the dissolved firm with Common succession within the belongings of the dissolved firm by the reactivated firm. So the perfect score for the reactivation is “structural modification”.
This qualification provides an account, higher than the options, of the authorized regime to which the reactivation is topic.
The simplification within the conclusion of the brand new contract is feasible for 2 causes.
The primary and fairly apparent (however which, for that cause, often goes unnoticed) is that it’s potential to impute to the hypothetical will of the companions that conform to the reactivation, their will to control the social belongings in line with the identical guidelines that that they had been utilizing earlier than the dissolution, that’s, it’s attributable to the hypothetical will of the companions that in the event that they want to revoke the dissolution settlement, the reactivated firm this ruled by the identical guidelines that ruled the dissolved society.
The second is that the fairness persists throughout liquidation for the reason that dissolution doesn’t have as an impact the extinction of the patrimony, however, merely, the opening of the liquidation. The persistence of the social heritage permits the reactivated society don’t purchase the products and rights and the necessary positions as people however occur universally to the dissolved society within the possession of the patrimony.
These two causes enable the companions to enter into the brand new partnership settlement in a really simplified means in comparison with getting into into the unique partnership settlement. Neither it’s essential to contribute neither is it essential to ascertain the principles of governance of the social patrimony. Neither is it essential to endow the belongings with the attributes of the authorized individual (identify, handle, nationality). The contributions, as a result of they haven’t been restored nor the liquidated patrimony; the principles of presidency as a result of, as has been stated, it may be attributed to the hypothetical will of the companions who settle for the reactivation the submission to the identical guidelines of presidency in pressure earlier than the dissolution and the attributes of the authorized character for a similar cause. There’s, due to this fact, contractual and “actual” continuity between the dissolved and the reactivated society.
It is for that reason, maybe, why the bulk doctrine has difficulties to “see” within the reactivation the celebration of a brand new partnership contract.
For individuals who outline dissolution as a modification of the social goal which ceases to be the exploitation of the company goal and turns into a liquidation goal, the reactivation is conceived as a “case of paralysis of the liquidation course of … and … the return of the dissolved firm to lively life …” and so they add that it doesn’t it’s “a change of the company goal”, however slightly “a return to its full train” with out explaining, on this case, why the dissolution implies a change within the company goal when dissolution and reactivation are symmetrical processes .
Such a definition of reactivation appears a mere metaphorical description that doesn’t confer with any exact authorized regime and, due to this fact, doesn’t help in protecting gaps in authorized regulation, in acquiring standards to resolve potential antinomies and, finally, within the setting of the establishment within the system of Firm Legislation together with its coherence with the regime of partnerships.
* This entry is an excerpt from the writer’s work titled “Reactivation as a structural modification: conclusion of a brand new partnership and common succession contract ” to be revealed quickly in quantity 62 of the Revista de Sociedades
Photograph: Pedro Fraile