SPANISH COMMERCIAL CODE
TITLE VII
SOCIETY
COMPANY
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.
§ 1. Training and testing of the partnership
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.
§ 2. Of reason or social firm in partnership
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.
§ 3. Social fund and the division of profits and losses in the partnership
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.
§ 4. Administration of the partnership
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 to manage is intrasmisible the heirs of the manager, even
though it is stipulated that the company has to continue among the
surviving partners and the heirs of the deceased.
Article 402.
If the administrator making the appointment of the members have not
determined the extent of the powers conferred upon him, the delegate
will be considered as a mere trustee, and shall have no powers other
than those necessary for the acts and agreements set forth in Article
387.
Article 403.
Administrators are required to carry the books that every merchant must
have under the provisions of this Code, and exhibit any of the partners
required.
§ 5. Prohibitions are subject to the partners in the partnership
Section 404. Members are prohibited in particular:
1. ° Remove the pool as much as that assigned for their private expenses.
The
mere removal of authorizing associates that have been verified to bind
it to a refund or to remove a quantity proportional to the interest that
each has on the social mass.
2. ° Apply mutual funds to individuals and businesses use these social signature.
The
member who has violated this ban will lead to the common mass gains,
and charged him only with a loss of business to invest the funds
diverted, without prejudice to return them to society and to compensate
the damage it has sustained.
It may also be excluded from society by his associates.
3.
° yield to any security interest in the company and be replaced for the
performance of the duties that apply in the administration.
The assignment or substitution without prior approval of all partners is zero.
4.
Exploit self the branch of industry in which society operates, and done
without the consent of all associates individual operations of any kind
when society does not have a specific kind of trade.
Members
who contravene these prohibitions will be forced to bring profits to
the common stock and individually bear the losses they prove.
Article 405.
Members may not deny authorization to request any of them to make a
commercial transaction, without demonstrating that the operations were
planned and prepared a manifest injury.
Article 406.
The industrial partner may not undertake any negotiations that distract
you from your social care or risk losing the gains they have acquired
to date rape.
§ 6. The dissolution and liquidation of the partnership
Article 407. The partnership is dissolved by the modes that determines the Civil Code.
Article 408. Dissolution of the society, it will clear by the person for that purpose has been named in the charter or the dissolution.
Article 409.
If the charter or the dissolution was agreed to appoint any liquidator
without determining the manner of appointment, it will be unanimously by
the partners and in case of disagreement, by the court of commerce.
The appointment may lie with a partner or a stranger.
Only in the case of being all satisfied, can be provided by partners to the collective settlement.
Article 410.
The liquidator is a true leader of society and as such must comply
strictly with the rules that will trace his title and respond to members
of the damages resulting from its operations were fraudulent or guilty.
Article 411.
Not being certain powers of the liquidator, can not perform other acts
and contracts which tend directly to the fulfillment of your order.
Consequently,
the liquidator shall not constitute mortgage, pledge or antichresis not
borrow money or buy goods for resale, or endorse bills of exchange, or
transact business on social rights, or subject to compromise.
Article 412. The rules contained in the first two paragraphs of Article 399 are applicable to the case where two or more joint liquidators.
The
disagreements that may occur between them shall be subject to the
resolution of the members, and absence or other impediment to the
majority of them, the court of commerce.
Article 413. Apart from the duties imposed on its title to the liquidator shall be obliged:
1.
° A form inventory, upon assuming office, all stock and debts of any
nature whatsoever, whether books, correspondence and papers of the
society;
2. ° To continue to complete outstanding transactions at the time of dissolution;
3. ° To require the administration to account managers or anyone else who has managed the interests of society;
4. ° to liquidate and terminate the accounts of the company to third parties and individual members;
5. ° to collect the receivables asset amount and receive the appropriate grant severances;
6.
° to sell the goods and movable property of the company, even when a
minor between the partners, provided they are not intended by them to be
divided in kind;
7. ° A present state of settlement when the members so require;
8. ° A yield at the end of the settlement a general account of his administration.
If the liquidator was the same manager of the company extinguished, must present at the time the account management.
Article 414.
The issues giving rise to the filing of the member's account manager or
the liquidator shall be subject to compromise precisely.
Article 415.
If the charter been omitted to make the designation indicates the
number 10 of article 352, means that issues that arise between partners,
either for society or the time of dissolution, shall be subject to
compromise.
Article 416. The liquidators represented at trial and liabilities to partners.
Article 417.
The liquidators appointed in the social contract may waive be removed
for cause and in the manner described in article 2072 of the Civil Code.
Whoever is appointed, may resign in another form to be removed according to general rules of the mandate.
Article 418.
By themselves the liquidation, the partners shall comply with the
foregoing rules, and in their deliberations observe the provisions of
Articles 387 and following up to 391 inclusive.
§ 7. The limitation of actions from the partnership
Article 419.
All actions against the liquidators are not partners, their heirs or
assigns prescribed four years from the date on which the entity is
dissolved, provided that the bylaws of fixed duration or the deed of
dissolution has been entered under Article 354. -
If the claim is conditional, prescription runs from the advent of the condition.
Article 420.
Prescription runs against minors and legal persons enjoy the rights of
such, but the loans are illiquid and not interrupted but by the legal
steps that within four years made against the partners creditors unpaid.
Article 421. After four years, the partners are not liquidators shall not be required to testify in court about the survival of the debts.
Article 422. The prescription does not occur when the partners themselves verify the liquidation or the company is bankrupt.
Article 423.
The creditor actions against the member or clearing members, considered
this last quality, and the partners have each course prescribed by the
deadlines stipulated in the Civil Code.
§ 8. Of corporations
Arts. 424-469. Repealed.
§ 9. Provisions relating to the limited partnership
Article 470.
Limited partnership is held between two or more people who promise to
lead to a particular social housing supply, and one or more persons who
undertake to manage the company solely by itself or its delegates and
its particular name.
Whether you call the former limited partners, managers and seconds.
Article 471. Two species of limited partnership: simple and actions.
Article 472.
La commandite formed by the meeting of a fund supplied entirely by one
or more limited partners, or by them and the managing partners at once.
Article 473.
The limited by shares is established for the meeting of a capital
divided into shares or coupons for action and provided by partners not
named in the charter.
§ 10. From commandite
Article 474.
The limited partnership is formed and simple test such as partnership,
and is subject to the rules established in the first seven paragraphs of
this title, as such rules are not in opposition to the legal nature of
this contract and the following provisions.
Article 475. The name of the limited partners will not appear on the bank mentioned in Article 354.
Article 476.
The limited partnership is governed under a name which necessarily must
include the name of the managing partner if they were one, or the name
of one or more of the managers if they are many.
The name of a limited partner can not be included in the name.
Words
and company added the name of a managing partner do not imply the
inclusion of the name of the limited partner in the firm name, or impose
a variety of responsibilities it has in its capacity as such.
Section 477.
The silent partner that allows or tolerates the inclusion of his name
on the company name is responsible for all obligations and losses of the
company in the same terms as the managing partner.
Article 478. The limited partner can not take society by way of contribution, ability, personal credit or industry.
Howbeit,
his contribution may consist of a secret communication art or science,
provided they do not apply by themselves or cooperate daily application.
Article 479.
If the contribution is the mere enjoyment or usufruct, a silent bear no
other loss than the products of which constitutes a contribution.
In no event shall be required to repay the amounts by way of benefits received in good faith.
Article 480. The limited partners have the responsibility it imposes and the right granted to shareholders of corporations by Article 456.
Article 481. The limited partner may, without losing that capacity, attend meetings and will have an advisory vote on them.
Article 482.
You can also assign its rights, but not transfer the power to examine
books and papers of the society while it has not been about their
operations.
Article 483. The managing partners are indefinitely and jointly liable for all obligations and losses of the company.
Limited partners only respond to one and the other to the extent of their contributions pledged or delivered.
Article 484. Limited partner is prohibited from executing any act of social administration, even as agent of the managing partners.
Article 485.
The limited partner who violates the prohibition of the preceding
Article shall be jointly liable with the managers of all losses and
obligations of the company, whether before or after the contravention.
Article 486.
The limited partner to pay the creditors of the company by one of the
reasons stated in Articles 477 and 484, shall be entitled to require the
managing partners of restitution of the excess amount of your
contribution.
In neither case can the managing partners of the limited partner to claim compensation for the mere fact of the violation.
Article 487. Administratorios acts are not part of the partners:
1. ° The contracts on their own or others celebrate with the managing partners;
2. ° The performance of a commission in a place other than that it is established the domicile of the corporation;
3.
° The advice, examination, inspection, enforcement and other indoor
events that pass between partners, provided they do not impede the free
and spontaneous action of the managers;
4. ° The acts collectively or individually run as community members after the dissolution of society.
Article 488.
The limited partner which is a facility of the same nature as the
social setting, or take part as a silent partner or one made by another
person loses the right to examine corporate books, unless the interests
of such establishment are not in opposition to the society.
Article 489.
Having one or more limited partners and many groups, is that all they
managed together, whether one or more managed by all of society will be
both limited partnership for collective and relatively early in the
latter.
Article 490. If in doubt, the company shall be deemed collectively.
§ 11. From limited by shares
Article 491.
The rules set forth in the preceding paragraph are applicable to joint
stock as are not inconsistent with the provisions hereof.
Article 492.
The limited partnerships can not divide its share capital or share
coupons to lower than ten hundredths of a shield, when it is not more
than fifty shields.
If the capital exceeds this amount, shares or vouchers action can not lose half shield.
Article 493.
The limited partnerships will not be definitely established only after
all the capital subscribed and delivered to each shareholder having at
least a quarter of the amount of their shares.
The
execution and delivery will be checked by the statement of manager in a
public document, and this will be accompanied by a list of subscribers,
a delivery status and the charter.
Article 494. Shares in limited partnerships are registered.
Article 495.
Subscribers are responsible actions, despite any provision to the
contrary, the total amount of shares which have taken in society.
The actions or action coupons are not negotiable but delivered after two-fifths of its value.
Article 496.
Whenever any of the partners bring you a contribution does not consist
of money, or estipulare its favor some particular advantages, the
general assembly will verify and estimate the value of one and other,
and until he has given his approval at a subsequent meeting, the company
shall not be definitively established.
The
deliberations of the assembly are taken most votes of shareholders
present or represented, and this majority is composed of a quarter of
the shareholders, representing a quarter of the capital.
The
partners we made the contribution or the benefits have been stipulated
under the appreciation of the assembly will have no vote.
Article 497.
Is null limited by shares incorporated in contravention of any of the
requirements contained in the preceding Articles, without prejudice to
its reorganization in accordance with the law.
Article 498. In all-stock will establish a monitoring board, composed of at least three shareholders.
The
board will be appointed by the General Assembly immediately after the
final constitution of society and social before any operation.
The first board shall be appointed for one year and the other five.
Article 499.
The board members should consider whether the company has been legally
constituted, inspect the books, checking the existence of social values
in cash, documents or any other form, and submit the end of each year
to the general assembly a report about inventories and the proposals
made by the manager to distribute dividends.
Article 500. The oversight board has the right to convene the general assembly and to provoke the dissolution of society.
Article 501.
Aborted Society for infringement of the rules prescribed for its
creation, members of the oversight board could be held jointly liable
with the managers of all trades executed after his appointment and
acceptance.
The
same responsibility may be declared against the founders of the company
have taken a contribution in kind and stipulated in its favor
particular advantages.
Article 502. Each member of the board of supervision shall be jointly liable with managers:
1. ° When you have knowingly allowed that inventory inaccuracies are committed serious harm to society or others;
2. ° Whenever you knowingly consented to have distributed dividends are not justified by regular inventories and sincere.
Article 503.
The issuance of shares or coupons for action in a company incorporated
in violation of Articles 492, 493 and 494, shall be punished by a fine
of half a shield.
The
same penalty shall apply to any manager who principiare corporate
transactions before the oversight board has begun to operate.
Article 504.
Trading in shares or vouchers of a value or action is contrary to the
provisions of Articles 492 and 494, or shares or coupons which action
has not delivered the two-fifths of its value under Article 495, shall
punishable by a fine of half to two shields.
With
the same fine will be punished to take part in the negotiations set and
who publicly expressed the value of shares or coupons for action.
Article 505. Shall be punishable under the Penal Code requires:
1.
Those who by simulating subscriptions or deliveries, by publishing
malicious subscriptions or deliveries that do not exist, or by other
false facts, obtained or attempted to obtain subscriptions or
deliveries;
2.
Those who subscriptions or deliveries to bring in bad faith publishing
the names of people who are related to society involves, in any form
whatsoever.
Article 506.
The shareholders argue that we had to collectively as plaintiffs or
defendants, a lawsuit against the managers or members of the oversight
board will be represented by proxy elected by the general assembly.
Unable
to verify the appointment by the General Assembly, by an obstacle any,
will be made by the Commercial Court at the request of the most diligent
party.
If
the lawsuit Versare about objects of particular interest to some
shareholders, proxies will be appointed at a meeting of stakeholders in
the cause.
In
either case proposed, the shareholders may intervene personally in the
case, the responsibility to bear the costs of its intervention.
§ 12. Association or participation accounts
Article 507.
Participation is a contract whereby two or more merchants take interest
in one or many commercial operations, instantaneous or repeated, you
must run one of them in his name alone and under his personal credit by
accountability and divide their associated gains or losses in agreed
proportion.
Article 508. Participation is not subject in their training to the formalities required for the formation of societies.
The agreement of the members determines the object, form, interest and participation conditions.
Article 509. Participation is essentially private, is not a legal entity and has no name, and address collective heritage.
Its
formation, amendment, dissolution and liquidation may be established
with the books, correspondence, witnesses and any other legal evidence.
Article 510. The manager is renowned sole owner of the business relationships that occur outside participation.
Third parties only have action against the administrator, just as the participants do not have it inactive against others.
Both, however, may use the manager's actions under an assignment form.
Article 511.
Save the changes resulting from the legal nature of participation, it
produces among the participants the same rights and obligations
conferred and imposed on each partner commercial companies.
Comentarios