Simple company
A simple company ( eG ) ( French Société simple , Italian Società semplice ) is a legal form in Swiss company law for the achievement of a common goal, which is not a commercial enterprise, by several natural persons and / or legal entities . It is therefore a partnership or a so-called legal community - two terms that are used synonymously in Swiss company law.
Legal bases
The most important legal basis of the simple company is the 23rd title (Art. 530 to 551) of the Swiss Code of Obligations (OR) . In addition, certain provisions from the other areas of the OR, in particular those of the general part of the OR, apply to individual issues.
definition
For the definition in Art. 530 OR, the legislature decided on a mixture of a positive and a negative definition. In relation to other, non-corporate contractual relationships, it defines itself in paragraph 1 of the article as a “contractual connection of two or more people to achieve a common purpose with common forces or means”. However, paragraph 2 of the article stipulates a negative definition compared to the other forms of company, so every company is a simple company unless it meets the requirements of another form of company.
In practice, it is particularly important to distinguish it from other contractual relationships such as a sales contract or mere parallel behavior. The criterion here is the animus societatis , i.e. the common will to achieve a common purpose with common means.
founding
The establishment of a simple company takes place through mutually agreed expressions of will (Art. 1 OR), since it is a contractual relationship. The expression of will must include all essential points and can be informal, both expressly and tacitly, whereby already implied behavior is sufficient for the establishment of a simple company. As a result, a simple society always emerges when a majority of people want to achieve a common goal, even if they are not aware of it. The case law also includes cohabitation in particular under this definition.
The negative definition of the simple company in Art. 530 Para. 2 OR has the consequence that it also represents the "catch basin" of company law. If, for example, a corporation is in the process of being established, it is a simple company until all the requirements of the respective legal form of the corporation have been met.
According to the broad definition, the importance of simple society is relatively great. It is given additional importance by the fact that the other partnerships largely refer to the regulation of the simple partnership for the internal relationship of the company.
Internal relationship
Contribution, profit and loss transfer
According to Art. 531 OR, every partner has to make a contribution to the achievement of the company's purpose, be it in money, property, claims or work. Unless the shareholders determine otherwise, the contributions are the same in type and scope (Paragraph 2).
Similarly, the profit and any loss are divided equally among the shareholders (Art. 532, 533 OR). In principle, however, the shareholders are also free to make a different regulation. The agreement of a so-called “ societas leonina ” (also “lion society” or “Leonischer contract”), according to which all shareholders have to share in the loss but only one person receives the profit, is not permitted. If a regulation was made only for profits or only for losses, this applies to both (Art. 533, Paragraph 2).
Corporate resolutions
According to Art. 534, company resolutions are passed unanimously. If the shareholders agree on the majority principle, the majority is to be calculated according to the number of people. According to the prevailing doctrine, however, this provision is not of a mandatory nature either. According to Art. 535, Paragraph 3 of the Swiss Code of Obligations, the appointment of a general representative and legal acts outside of the company's normal operations are the subject of company resolutions.
Managing directors
Everything that is not reserved for company resolutions can be done by the management. Every partner is authorized to manage the company (Art. 535, Paragraph 1 OR), unless the management has been assigned to certain partners or third parties by contract or company resolution. Anyone who is authorized to manage the company can veto the decision of any other managing director, provided this has not yet been implemented (Art. 535, Paragraph 2 OR).
The managing director has to exercise the care that he also applies in his own business, otherwise he owes the other shareholders compensation for damages (Art. 538 OR). If the managing director receives remuneration for his work, a stricter standard of care must be applied (Art. 538 Para. 3 OR).
If a partner is not authorized to manage the company, he has an inalienable right to personally inform himself about the course of company affairs and to inspect the company's books and papers (Art. 541 OR).
Loyalty Duty
Since it is forbidden for the partners according to Art. 536 OR to impair or thwart the purpose of the companies, since according to Art. 532 OR they have to share the profit equally and since they are accountable according to Art. 541 OR, the prevailing doctrine from a general duty of loyalty of the shareholders, even if such is not expressly provided.
External relations
External appearance and liability
The simple society is not a legal person and therefore has no legal personality . Unlike other institutions such as the general partnership it is also neither action- about yet process- collection Procedures capable. The simple society as such can neither enter into obligations nor be obliged and does not have a special fund. The shareholders are the bearers of all rights and obligations. Accordingly, the partners are primarily, unlimitedly and jointly liable for the company's debts (Art. 143 ff. OR).
The simple partnership also has no company and cannot be entered in the commercial register.
Power of representation
Art. 543 and 544 OR as well as the rules on general representation in Art. 32 to 40 OR apply. Accordingly, every partner can oblige the simple partnership towards third parties if the latter acts on behalf of the company and had the power of representation to do so. The latter is assumed if he is authorized to manage the company. The power of representation is missing if another managing director has vetoed a decision. The shareholders are also free to subsequently approve the actions of the shareholders who are not authorized to represent. If, on the other hand, the partner acts in his own name, the company is never obliged to third parties. Representation for the commission of unauthorized acts is excluded.
Change of shareholders and dissolution
The company is dissolved if one of the reasons stated in Art. 545 OR occurs. In particular, the achievement of the agreed purpose, the expiry of the agreed duration and mutual agreement. If the resignation of a partner has not been expressly regulated, the company will also be dissolved in the event of the death or termination of a partner. The latter is only possible, however, if the company has been closed for an unlimited period or if termination is expressly provided (Art. 546 OR). However, the admission of a new partner is possible at any time if all shareholders agree (Art. 542 OR). Article 181 of the Swiss Code of Obligations applies to the liability of a member who is leaving or joining. Exclusion of a partner against his will is not possible.
liquidation
If there is a reason for dissolution, the company will be liquidated. First of all, all outstanding liabilities to third parties as well as any expenses and uses of the shareholders are paid. If a liquidation surplus or loss remains at the end, this is to be shared among the shareholders like profit or loss (Art. 549 OR). Contributions in kind by the shareholders are only to be repaid according to the value of the contribution; there is no entitlement to repayment in kind (Art. 548 OR). The liquidation is to be carried out by all shareholders including those who were excluded from the management, unless it is transferred to individual shareholders or third parties (Art. 550 OR).
Comparative Law and the Silent Society
The counterparts of the simple society in German and Austrian company law are the civil society (GbR) and the civil law society (GesnbR) . While these forms of company are in principle also designed as a partnership to achieve a common goal that may not be a commercially run trade, German law now assumes partial legal capacity including litigation capacity of the GbR, which means that its application goes much further than the simple company.
In contrast to German and Austrian company law, Swiss law does not recognize a silent society . However, it is possible to design a simple society as a quiet society. It should be noted that the silent partner cannot commit himself to third parties and can accordingly only be made liable internally.
Web links
- The provisions on the simple company in the Code of Obligations
- Characteristics of the simple society (PDF file; 60 kB)
literature
- Arthur Meier-Hayoz , Peter Forstmoser : Swiss company law . 10th edition, Bern 2007, § 12.
- Peter Jung, Peter V. Kunz, Harald Bärtschi: Corporate Law. 1st edition, Zurich / Basel / Geneva 2016, § 7.
Individual evidence
- ^ The provisions on the simple company in the Code of Obligations , accessed on December 30, 2012.
- ↑ judgment of the Federal Court 4A_383 / 2007 of 19 December 2007 E. 3.1. Retrieved September 12, 2018 .
- ^ Peter Jung, Peter V. Kunz, Harald Bärtschi: Corporate Law . Ed .: Andreas Furrer et al. Zurich / Basel / Geneva 2016, ISBN 978-3-7255-7184-0 , p. 6-17 .
- ↑ Michelle Cottier, Cécile Crevoisier, The illegitimate cohabitation as a simple society ( Memento of the original from October 5, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 205 kB), accessed December 30, 2012.
- ^ Peter Jung, Peter V. Kunz, Harald Bärtschi: Corporate Law . Zurich / Basel / Geneva 2016, p. 298. § 7 N 69 .
