A social contract ( English articles of association ) is a contract in which the partner in the establishment of a society define their legal bases. In the case of German corporations and associations, it is also called the articles of association ( Section 23 (1 ) AktG ), and in Austrian and Swiss association law, the articles of association .
Every society is created through a social contract. The articles of association form the constitution of a society with the help of which it can participate in business dealings. It is a contract under the law of obligations with elements of organizational law . If § 105 , § 161 HGB and § 705 BGB do not contain any mandatory provisions, the provisions of the law of obligations apply. However, it is not a mutual contract, since the services of the partners are not in a synallagmatic relationship, but rather they combine their services to pursue a common purpose. This is because a partner cannot claim to refuse to make a contribution of his own just because another partner has not yet made his own capital contribution . Articles of association differ fundamentally in form and content for partnerships and corporations . A partnership agreement is missing in the case of sham companies.
A special form is not provided for the articles of association for partnerships. It can also come about tacitly or by implication . A general partnership can be registered in the commercial register without a articles of association . However, there is an indirect form requirement for you from Section 106 (1) HGB, because the information required according to Section 12 HGB must be submitted to the commercial register in a certified form. It is sufficient if two shareholders first submit a declaration of membership in the articles of association and others join them later ( step formation ).
In the case of corporations, notarial certification ( Section 23 (1) AktG, Section 2 (1) GmbHG ) of the articles of association is required. If this form is not adhered to, the articles of association are void according to § 125 BGB .
The law of the BGB-Gesellschaft and partnerships is largely optional, so that considerable freedom of contract is available when drafting a partnership agreement . A articles of association must regulate that and how each of the partners has to contribute to the achievement of the common purpose ( § 705 BGB). The purpose can be permanent or temporary. The common purpose and the articles of association are basic requirements for the creation of the company.
The internal relationship regulates the relationships between the shareholders and between shareholders and management (management authority in the case of external entities ), in particular the obligation to properly bookkeeping and accounting or to regulate powers. It is primarily determined by the articles of association and alternatively by optional legal regulations. The partnership agreement allows the OHG to arise internally ( § 109 HGB), the following §§ 110 to 122 HGB only apply subsidiary. In Section 45 (2) GmbHG, in connection with Section 46 GmbHG, significant internal relationships are listed. The continuation in the event of the death of a partner is also in need of regulation . Silent societies are exhausted in internal relationships, there are no external relationships ( Section 230 (2) HGB).
The external relationship regulates the company's relationships with third parties outside the company (business partners). Mandatory statutory provisions apply here, the articles of association only contain subsidiary regulations. In the external relationship, the company does not come into being when the articles of association are drawn up, but only when it is entered in the commercial register, in exceptional cases even beforehand when business operations begin ( Section 123 (2) HGB; OHG). The division of the effectiveness of society internally and externally is important with regard to traffic protection. Only when the company has become effective externally does company law apply in full with regard to representation and liability. In particular, the legal liability and representation regulations are mandatory in the interests of legal security . Creditors can trust that in partnerships at least one natural person has unlimited liability for corporate debts with their private assets .
The content of the regulations is primarily the company name , seat , duration, management and representation , resolution and voting rights , distribution of results, reasons for dissolution and succession regulations in the event of death. The articles of association must not contain any illegal corporate object (§ § 134 , § 138 BGB).
The minimum content of a partnership agreement is required by law for corporations ( Section 23 (3) AktG, Section 3 (1) GmbHG). This includes, in particular, the founders, number of shares , paid-in share capital / share capital , company name and seat, corporate purpose. Deviating provisions of the articles of association are only possible where permitted by the AktG ( Section 23 (5) AktG).
The company was declared declaratively through the articles of association, but constitutively only through its registration. Defects in the articles of association (invalidity, contestability ) do not affect the existence of the company in the external relationship. Because of the need for protection of third parties outside the company, they do not lead to civil law consequences, but to the legal institution of the defective company . Articles of association as long-term obligations can be annulled internally by unilateral ( termination ) or mutual termination of the contractual relationship. Further reasons for termination are the fulfillment of the purpose, expiry of the deadline, and dispute . The resulting dissolution of the company leads to its liquidation , which must be reported to the commercial register for the purpose of deletion .
- ↑ Barbara Grünewald, Corporate Law , 2008, p. 5.
- ^ BGH, judgment of July 2, 1990, Az. II ZR 243/89 full text .
- ↑ Christian R. Schmidt, OHG, KG and PublikumsG , 2010, p. 123.
- ↑ RGZ 163, 385, 392.
- ^ Christian R. Schmidt, OHG, KG and PublikumsG , 2010, p. 132.