As the responsibility for debts of corporations, we can speak of a general rule of its limitation and several exceptions where liability becomes il • limited. This modulation CC 1911 responds to a process of abstraction to the “Limitation of Liability”, but lost along the way some of the material foundations of law.
Sets the art. 148 of the Commercial Code concerning the “limited partnership” two regimes: the regime of the general partners, who can manage (in any case, who will administer general partner, article 252 of the Companies Act capital.) unlimited match (all general partners, managers Whether or not the company in partnership, will staff and severally bound to the results of operations of it), while the regime of limited partners (who are forbidden to administer) only respond to the reserve investment (Liability limited partners scared obligations and losses the company is limited to funds Pusi or were forced to bring in partners comandita.Los backers can not do any act of administration of the interests of the company, even in Quality managing board of partners). The material basis is clear: the “irresponsible” partner (understood as that which can generate higher losses of the investment, which in no event be liable personally) can not manage, while partner “responsible” (responding to their heritage itself) it can manage. Novecentista legislature did not understand the socio without liability could act in the trade, that implied an excessive advantage, and a risk of “mismanagement” indeed.
We have the opposite paradigm, provided relatively recently, which is the sole company capital (constitution, not supervención) in which the sole shareholder is another capital company ilimited liability (art. 12. in fine of the Corporations Act). The only condition line, to validate this corporate form, is advertising the sole member in the Commercial Register. It can even be operated for six months without this publicity, being irresponsible sole partner for “his” acts (since you can be an administrator) if this circumstance is registered with the Registry (art 14 of that law during these six months. After six months from the acquisition by the company of sole character without this circumstance any registered in the Commercial Register, the only partner responds staff, jointly and severally for the debts incurred during the periods unipersonalidad). As stated, two opposite paradigms.
In the current economic system, we can nevertheless make two statements: as capital companies, regarding civilians, have greater borrowing capacity are also more expansive strength and growth, with the correlative impact on their profits and gains . Considering the ability to generate profits despite the “irresponsibility” regarding debts assumed, the truth is that the Banks have historically preferred finance corporations, and not civilians. We, on this path, to a devastating conclusion: social capital has never done seriously, guarantee of social activity, but the prospects for future and hypothetical gains, coupled with the ability to pay -abstracció currently made of solvency.
Certainly there are several exceptions to the “irresponsibility” of the partners and managers of limited liability companies (among others, ss. 37.2, 39.1, 73, 236 and 367 LSC). These are cases of destruction, error, negligence, including malicious acts that make the partners and managers respond to pass their property, with limit to what was planned and agreed, or no limit. These are cases, as has been said before, exceptional.
But the crisis has shown that there is another case, and therefore not outstanding, which gave the limited liability -unida to the irresponsibility of its members or administrators society and becomes unlimited. When society no longer has the capacity to generate profits, and economic activity is not in a sufficient guarantee, maintaining its capital in legally enforceable limit, banks require return to nineteenth-century paradigm, transforming, for practical purposes, the venture capital in civil society. Indeed, when an administrator or partner, especially in small family businesses and severally guarantee an obligation of society perhaps, when your estate is notably lower than the secured obligation personally-, or mortgage his house by an obligation of society – when eventually this property is the only property manager or partner, his “irresponsibility” are losses, repealing the autonomy the essential rules of company law, as violating the law protecting consumers and posing a radical inequality between creditors.
Now it is a matter of assessing what the thresholds of autonomy and whether these thresholds accept the assurance of certain liabilities is made by partners as a matter of consumers and on their own property, to the detriment of other creditors.
Written by: Carlo E. Gervasoni