Spanish Commercial Code: Partnership Contracts | Althox
The Spanish Commercial Code, specifically Book II, Part VII, delves into the intricate world of contracts and obligations related to commercial societies. This section is fundamental for understanding the legal framework governing business entities in Spain, outlining their formation, operation, and dissolution. It establishes the various types of partnerships recognized by law and the specific requirements for each.
Understanding these regulations is crucial for entrepreneurs, legal professionals, and anyone involved in commercial activities within the Spanish jurisdiction. The code ensures clarity and stability in business relationships, protecting both partners and third parties. This comprehensive guide will explore each article in detail, providing context and implications for modern commercial practice.
The Spanish Commercial Code provides the legal backbone for business operations.
Types of Societies and Legal Recognition
The Spanish Commercial Code categorizes commercial societies into distinct types, each with its own structure, liability, and operational rules. This classification is essential for legal clarity and for guiding businesses in choosing the most appropriate legal form for their activities.
Article 348. The law recognizes three kinds of society: 1st General Partnership; 2nd corporation; 3rd Limited partnership. It also recognizes the association or participation accounts.
Article 348 lays the groundwork by identifying the primary forms of commercial societies. These include the General Partnership (Sociedad Colectiva), the Corporation (Sociedad Anónima), and the Limited Partnership (Sociedad Comanditaria). Additionally, it acknowledges "association or participation accounts" (Cuentas en Participación), which, while not a separate legal entity, represent a common form of collaboration.
- General Partnership (Sociedad Colectiva): Characterized by the unlimited liability of all partners for the company's debts. Partners typically manage the business directly.
- Corporation (Sociedad Anónima): A capital company where the liability of shareholders is limited to their capital contributions. It is suitable for larger businesses and often involves a more complex governance structure.
- Limited Partnership (Sociedad Comanditaria): Combines elements of both general and limited partnerships. It has two types of partners: general partners with unlimited liability and limited partners whose liability is restricted to their contributions.
- Association or Participation Accounts (Cuentas en Participación): A contractual arrangement where one party (the managing partner) carries out business in their own name, but with the participation of another party (the silent partner) who contributes capital and shares in profits or losses, without being publicly known as a partner.
Formation and Proof of Partnership
The formation of a commercial society under Spanish law is subject to specific legal requirements, particularly concerning capacity, documentation, and registration. These formalities are designed to ensure legal certainty and protect all parties involved.
Article 349. You can celebrate the partnership agreement that everyone has the capacity to be bound. The lowest adult and married women not fully separate in property need special permission to celebrate a partnership. The authorization of the minor will be conferred by the ordinary courts, and a married woman by her husband.
Article 350. The partnership is formed and tested by public deed registered in terms of Article 354. The dissolution of the society is to be made before expiry of the stipulated term, the extension of this, the exchange, retirement or death of a partner, altering the name and in general any reform, expansion or modification of the contract will be reduced public deed with the formalities specified in the preceding paragraph. Need not comply with such formalities in the case of simple extension of society to be produced in accordance with the provisions that exist about the social contract. In this case the company shall be extended in accordance with the terms of members, unless one or more of them expressed their willingness to put an end on time by a declaration made by public deed and which shall take note outside the respective entry in the register of commerce before the date fixed for the dissolution.
Article 351. The contract contained in a private document not produce another effect among the partners that force them to give the deed before the company shall start its operations.
Article 352. The articles of incorporation must state: 1. ° The names and addresses of partners; 2. ° The reason or corporate signature; 3. ° The partners responsible for the administration and use of the name; 4. ° The capital introduced by each of the partners, whether they consist of money, credits or any other kind of property, the value being assigned to inputs consisting of furniture or buildings, and how should be the fair price of such contributions if they were not assigned any value; 5. ° The negotiations need to relate the rotation of the society; 6. ° The share of profit or loss is allocated to each partner or industrial capitalist; 7. ° The age in which society must begin and dissolve; 8. ° The amount that each partner can take annually for his private expenses; 9. ° The way it has verified the liquidation and division of community assets; 10. If the differences that occur in society should be or not subject to the resolution of arbitrators, and the first case, the way they should be appointed; 11. The domicile of the corporation; 12. Other pacts agreed by the partners.
Article 353. Is not admissible evidence of any kind against the tenor of the deed executed pursuant to Article 350, or to justify the existence of agreements not expressed in them.
Article 354. An extract from the charter must be registered in the commercial register for the address of the company. The extract will contain the instructions stated in numbers 1. °, 2. °, 3. °, 4. °, 5. And 7. Of article 352, the date of the respective deeds, and the name and address scribe that had been granted. Registration should be made before the expiration of sixty days from the date of the charter.
Article 355. If the charter been omitted means the registered office of the company domiciled in the place of issue of the former.
Section 355 A. The omission of the public deed of incorporation or modification, or their timely registration with the Registrar of Trade, produce absolute invalidation between partners, except as provided in sections 356, first paragraph, and 361, first paragraph. The timely completion of registration shall take effect retroactive to the date of writing.
Article 356. The society comprising no deed, instrument or deed or reduced to an instrument protocol, is null and void and may not be sound. Nevertheless, if there actually will lead to a community. Gains and losses will be shared and support and the return of contributions shall be made among the villagers under the agreement and in lieu thereof, in accordance with the provisions for society. Community members jointly and severally liable to third parties with whom we have contracted on behalf of and in the interest of it, and shall not rely on third parties the failure of the instruments mentioned in the first paragraph. Third parties may in fact prove the existence of any evidence as they recognize this code, and the proof will be appreciated according to the rules of sound criticism.
Article 357. The society is vitiated by void for breach of the requirements of section 350 shall have legal personality and will be settled as a society if public deed or instrument or reduced notarized deed. All this without prejudice to the sanitation service in accordance with the law. The partners jointly and severally liable to third parties with whom we have contracted on behalf of and in the interest of society in fact.
Article 358. The voluntary execution of the partnership agreement does not purge the void that is vitiated by breach of legal formalities, subject to the reorganization referred to in the preceding article.
Article 359. Which will hire a society that has not been legally constituted, can not withdraw for this reason the performance of their duties.
Article 360. The facts contained in the second paragraph of Article 350 only produce effects against third since a record of its occurrence, as indicated in that article.
Article 361. The modified extract of which has not been duly registered in the Register of Commerce or no effect against the partners or against third parties, except in the case of sanitation in accordance with the law and the restrictions it imposes. Such deprivation of operating cash right, without prejudice to the unjust enrichment action as appropriate. The modification timely registered in the Commercial Register, but vitiated by defects in form, produces effect against members and others, until it has been declared invalid. The statement referred to in the preceding paragraph does not have retroactive effect and shall apply only to situations that occur from the moment it is rendered by the sentence that contains it.
Article 362. Repealed.
Article 363. Repealed.
Article 364. Repealed.
The formation process begins with the capacity of individuals to enter into a partnership agreement. Article 349 specifically addresses minors and married women not fully separated in property, requiring special authorization to ensure their legal protection. This highlights the code's emphasis on legal competency.
A cornerstone of partnership formation is the public deed and its subsequent registration, as mandated by Article 350 and further elaborated in Article 354. This public record ensures transparency and legal validity, not only for the initial formation but also for any significant changes, such as dissolution, extensions, or alterations to the company's name. The registration must occur within sixty days of the charter's date.
Understanding the various legal structures is critical for business.
Article 352 provides a detailed list of what must be included in the articles of incorporation. This includes fundamental information such as partner names, the corporate signature, capital contributions, the nature of business operations, profit/loss distribution, and the duration of the society. These details are vital for defining the internal workings and external representation of the partnership.
The code also addresses the consequences of non-compliance with these formalities. Article 351 states that a private document only obliges partners to formalize a public deed before operations begin. More critically, Article 355A and 356 declare that the omission of a public deed or timely registration leads to absolute invalidation between partners, though it may still create a de facto community with joint and several liability towards third parties. This emphasizes the importance of adherence to legal processes.
Articles 357 to 361 further clarify the effects of formal defects, highlighting that while a society may be deemed null and void, it can still acquire legal personality if a public deed is eventually executed and registered, albeit with potential liabilities for partners. These articles also discuss the retroactivity of registration and the effects of modifications that are not properly registered, particularly concerning third parties. It is important to note that Articles 362, 363, and 364 have been repealed, indicating legislative updates over time.
The Company Name or Social Firm
The company name, or social firm, is more than just an identifier; it represents the identity and integrity of the partnership. The Spanish Commercial Code sets strict rules regarding its composition, use, and the liabilities associated with it.
Article 365. The name is the formula set forth the names of all partners or some of them, with the addition of these words and company.
Article 366. Only the names of the general partners can enter into the composition of the name. The name of the member who has died or been separated from society will be removed from the corporate signature.
Article 367. The use made of the name after the dissolution of society, is an offense of forgery, and the inclusion in it of the name of a stranger is a scam. Falsehood and fraud will be punished under the Penal Code.
Article 368. Which tolerates the inclusion of his name in the trade ratio of an alien society, is responsible for persons who have contracted it.
Article 369. The name is a fixture of social or industrial establishment which is the subject of corporate transactions, and therefore is not transmissible to him.
Article 370. The general partners listed in the constitution are jointly responsible for all legal obligations under the corporate name. Under no circumstances may repeal a covenant partners solidarity partnerships.
Article 371. You can only use the name the partner or partners who have been granted such authority by the respective deed. In the absence of an express delegation, all members may use the corporate signature.
Section 372. The use of the name may be conferred on a stranger to society. The delegatee shall indicate in the public or private firm for power, failing to pay bills of exchange which has put into circulation, since the failure to induce antefirma in error about its quality to others which they have been accepted.
Article 373. If members use the signature unauthorized social, society will not be responsible for fulfilling the obligations that have signed, unless the obligation is made out of any society. The responsibility, in this case is limited to the amount concurrent with any reported benefit society.
Article 374. Society is not responsible for the documents signed with the name when the obligations that have caused concern and not the third accepts with the knowledge of this.
Article 365 defines the company name as a formula incorporating the names of partners, typically followed by "and company." This practice emphasizes the personal nature of general partnerships. Article 366 further restricts the use of names to general partners and mandates the removal of names of deceased or separated partners, ensuring the firm accurately reflects its current composition.
The code imposes severe penalties for the misuse of the company name. Article 367 explicitly states that using the name after dissolution constitutes forgery, and including a stranger's name is considered fraud, both punishable under the Penal Code. This underscores the legal significance and protection afforded to the corporate identity. Furthermore, Article 368 extends responsibility to individuals who tolerate the inclusion of their name in a foreign society's trade ratio.
A key principle established in Article 369 is the non-transferability of the company name. It is considered an integral part of the social or industrial establishment, directly linked to the corporate transactions it undertakes. This prevents the commodification of the firm name independently of the business itself.
Accurate financial records are crucial for any commercial entity.
Regarding liability, Article 370 makes general partners jointly responsible for all legal obligations under the corporate name, explicitly stating that this solidarity cannot be repealed by agreement. This provision offers strong protection to third parties contracting with the partnership. The authority to use the firm is also carefully regulated; Article 371 specifies that only authorized partners or delegates may use it, with all members having the right in the absence of express delegation.
Article 372 allows for the delegation of the firm's use to a stranger, but with a critical caveat: the delegate must clearly indicate their power to act. Failure to do so, especially in negotiable instruments like bills of exchange, can lead to personal liability. This ensures that third parties are not misled about the capacity of the signatory. Articles 373 and 374 further delineate responsibility when the firm is used without authorization or for obligations unrelated to the society, limiting the society's liability in such cases, provided the third party is aware.
Social Fund, Profits, and Losses
The social fund is the financial foundation of any partnership, comprising the contributions of its partners. The code details what can constitute these contributions, how they are managed, and the rules for distributing profits and losses.
Article 375. The social fund is composed of the contributions that each partner delivery or promises to deliver to society.
Article 376. Contribution may be subject to money, credit, and personal property, grants, privileges of invention, manual labor, the very industry, and generally everything marketable able to provide some utility.
Article 377. The public office of broker, broker and any other that is served under appointment of the President of the Republic can not be the subject of a contribution.
Article 378. Partners must submit their contributions at the time and manner stipulated in the contract. Where not specified, delivery will be made at the registered office after articles of association signed.
Article 379. The delay in the delivery of the contribution, whatever the cause that produces it, allows the partners to exclude socio society to delinquent or enforcement proceedings against person and property to enforce compliance with its obligation. In either case the defaulting member liable for the damages that the delay thereby incur to society.
Article 380. Personal creditors can not seize a partner during the partnership's contribution to the latter entered, but will be allowed to apply for retention of the interest in it hath to perceive at the time of social division. They may not concur in the insolvency of the corporate creditors, but will be entitled to pursue the debt corresponding to the residue of the estate insolvent.
Article 381. Members will not be entitled to recover their contributions before the conclusion of the liquidation of the company, unless they consist in the enjoyment of the objects introduced to the pool.
Article 382. The venture capitalists themselves divided between gains and losses means if so stipulated. Where not specified, the split in proportion to their respective contributions.
Article 383. In terms of profits and losses for the industrial partner, it will be what has been stipulated in the contract and there being no stipulation, the lead industrial partner in earnings a share equal to that corresponding to the more modest contribution, without paying any share in the losses.
Article 375 defines the social fund as the sum of contributions, whether delivered or promised, by each partner. This forms the collective capital of the society. Article 376 broadly permits various forms of contribution, including money, credits, personal property, grants, invention privileges, and even manual labor or industry. This flexibility allows for diverse forms of participation, recognizing that value can be contributed in many ways.
However, Article 377 introduces a crucial restriction: public offices, such as those of a broker or any position appointed by the President of the Republic, cannot constitute a contribution. This prevents conflicts of interest and ensures the integrity of public service. Partners are obligated to deliver their contributions as stipulated in the contract, or at the registered office after signing the articles of association if no specific time is agreed upon (Article 378).
Failure to deliver contributions carries significant consequences. Article 379 allows for the exclusion of a delinquent partner or legal action to enforce compliance, with the defaulting partner liable for any damages caused by the delay. This provision protects the society from financial instability due to unfulfilled commitments.
The code also clarifies the rights of personal creditors of partners. Article 380 states that such creditors cannot seize a partner's contribution during the partnership's existence but can seek retention of the partner's interest at the time of social division. This protects the integrity of the social fund while acknowledging creditors' rights. Partners, as per Article 381, generally cannot recover their contributions before the company's liquidation, with exceptions for the enjoyment of objects contributed.
The distribution of profits and losses is addressed in Articles 382 and 383. For capitalist partners, the division follows the stipulations in the contract; otherwise, it's proportional to their contributions. Industrial partners, who contribute labor or industry, share in profits as stipulated, but if not specified, they receive a share equal to the most modest capitalist contribution and are not liable for losses. This distinction recognizes the different nature of contributions and associated risks.
Administration of the Partnership
Effective administration is vital for the smooth operation of any partnership. The Spanish Commercial Code outlines the rules governing the management of societies, covering both general and delegated administrative powers, as well as the liabilities associated with them.
Article 384. The regime of the partnership will comply with the covenants containing the charter, and what has not been provided them, the rules stated below.
Article 385. The administration of law applicable to each and every one of the partners, and they can play by themselves or by their delegates, are members or strangers.
Article 386. When the social contract of manager means a person, means that the partners give each other the power to administer and to force jointly responsible for all without notice and consent.
Article 387. Under the legal mandate, each partner can validate all acts and contracts included in the ordinary course of society or are necessary or conducive to the achievement of the purposes for which it is been proposed.
Article 388. Each partner is entitled to oppose the consummation of the transactions and contracts designed by other, unless they relate to the mere maintenance of common things.
Article 389. Opposition temporarily suspended enforcement of the act or proposed procurement until the numerical majority of the members qualify as a convenience or inconvenience.
Article 390. The agreement only requires the majority to the minority when it falls on simple acts of administration or provisions contained in the circle of operations designated in the social contract. Resulting in the deliberations of the company two or more views that do not have an absolute majority, members must refrain from carrying out the act or proposed procurement.
Article 391. If, despite the opposition verificare the act or contract with third parties in good faith, the partners will jointly and severally liable to comply, without prejudice to their right to be indemnified by the partner who had executed.
Article 392. Delegate authority to manage one or more members, the others are inhibited by this one act of interference in social administration.
Article 393. The power to administer brings the right to use the corporate signature.
Article 394. The delegate will only have the powers to appoint his title, and any excess committed in the exercise of them, the company will be responsible for all damages that occurring.
Article 395. Delegated administrators representing the society and out of court, but if it should be invested with special powers may not sell or mortgage the property by its nature or destination, or alter its shape, no compromise or compromise of any corporate business nature whatsoever.
Section 396. Alterations in the form of social property that doeth manager in full view of members, shall be authorized and approved by them for all legal purposes.
Article 397. No special administrators need to be able to sell the real estate industry, provided that such event were included in the number of operations that constitute the ordinary course of society, and to take mutual quantities strictly necessary to set in motion the business of office, make repairs to buildings necessary social, raise the mortgages that encumber or meet other urgent needs.
Article 398. Administrators have legal representation in court society, be it from acting as plaintiff or defendant.
Article 399. Having two administrators by title have to act jointly, the opposition of one of them prevent the consummation of the transactions or contracts designed by the other. If administrators are three or more sets must act under the majority vote and refrain from carrying out acts or contracts that have not yet obtained. If, notwithstanding the opposition or the majority defect implements the act or contract, it shall take full effect on bona fide third parties, and the administrator has concluded that society will respond to the damage that it follow.
Article 400. The administrator appointed by a special clause of the charter can be executed, despite the opposition of his fellow members of the administration excluded all acts and contracts to extend its mandate, provided that no fraud check. But if his efforts nevertheless have obvious damage to the common mass, the majority of the members may appoint a co-manager or request the dissolution of society.
Article 401. The ability...
The administration of a partnership is primarily governed by the covenants within its charter, as stated in Article 384. In the absence of specific provisions, the code's default rules apply. Article 385 establishes that administration is a right applicable to all partners, who can exercise it directly or through delegates, whether they are partners or external individuals.
When the social contract designates a specific manager, Article 386 implies that partners grant each other the power to administer and assume joint responsibility without requiring prior notice or consent for every action. Article 387 grants each partner the authority to validate acts and contracts within the ordinary course of business, or those necessary to achieve the society's objectives.
A crucial aspect of collective administration is the right to oppose actions. Article 388 allows any partner to oppose transactions proposed by another, unless they concern the mere maintenance of common assets. Such opposition, as per Article 389, temporarily suspends the act until a majority of members decide on its convenience. Article 390 clarifies that a majority agreement binds the minority only for simple administrative acts or operations within the scope defined in the social contract. If no absolute majority is reached, members must refrain from the proposed act. If an act proceeds despite opposition and involves third parties in good faith, Article 391 holds partners jointly and severally liable, with recourse against the executing partner.
Delegated administration, where one or more partners are given management authority, inhibits other partners from interfering (Article 392). This power includes the right to use the corporate signature (Article 393). However, the delegate's powers are limited to their title, and any excess committed can make the company liable for damages (Article 394). Article 395 specifies that delegated administrators represent the society in and out of court, but require special powers for significant actions like selling or mortgaging property, or altering its form. Any such alterations made by a manager and observed by members require their authorization (Article 396).
Article 397 provides exceptions for special administrators to sell real estate if it's part of the ordinary course of business or to undertake necessary financial actions for the business's operation, repairs, or urgent needs. Administrators also have legal representation in court (Article 398). For multiple administrators, Article 399 dictates that two joint administrators require mutual agreement, while three or more must act by majority vote. If an act proceeds despite opposition or lack of majority, it remains valid for good-faith third parties, but the executing administrator is liable for damages to the society.
Finally, Article 400 addresses an administrator appointed by a special clause in the charter. Such an administrator can execute acts even against the opposition of other members, provided there is no fraud. However, if their actions cause obvious damage, the majority of members can appoint a co-manager or seek the dissolution of the society. The provided text ends abruptly at Article 401, but it is clear that the code aims to provide a comprehensive framework for managing partnerships, balancing individual rights with collective responsibilities and protecting both internal and external stakeholders.
Fuente: Contenido híbrido asistido por IAs y supervisión editorial humana.
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