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ALISON: Diploma in Business Management & Entrepreneurship

Questions & Answers about Managing large scale organisations - Specific management functions

The Question must be about:
- Module: Managing large scale organisations
- Topic: Specific management functions

Latest Questions

  • S Raphael Ouedraogo Burkina Faso what are the specific functions of managers
    2014-08-28 10:08:42

    • S Raphael Ouedraogo Burkina Faso it is the function detrminated by the structure of the organisation and of the area of competency
      2014-08-28 11:08:43
  • Julian Shadrin United States of America Jones Hanungu Munang'andu please stop spamming the question zone.
    2014-08-27 23:08:45

  • victor john Nigeria is it appropriate for managers to trespass on their specific management due to incompetence on the side of another managerif he is well versed in that area?
    2014-08-26 00:08:20

    • Mandisa Saurombe Zimbabwe Probably a better alternative would be to first communicate with the other manager and if agreeable, show them what they need to do. This will allow the competent manager to carry out the task and at the same time coach the 'incompetent' manager so that they are able to carry out a similar task in the future. It could also avoid possible conflicts too as no one would have stepped on anyones' toes, so to speak. a reasonable 'incompetent' manager would appreciate this route.
      2014-08-27 14:08:15
  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:16

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:58

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:46

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:34

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:24

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:11

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:42

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:23

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:11

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:00

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:12

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:48

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:39

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 10:08:15

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 09:08:46

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 09:08:26

  • Jones Hanungu Munang'andu Zambia Business enterprises customarily take one of three forms: individual proprietorships, partnerships, or limited-liability companies (or corporations). In the first form, a single person holds the entire operation as his personal property, usually managing it on a day-to-day basis. Most businesses are of this type. The second form, the partnership, may have from two to 50 or more members, as in the case of large law and accounting firms, brokerage houses, and advertising agencies. This form of business is owned by the partners themselves; they may receive varying shares of the profits depending on their investment or contribution. Whenever a member leaves or a new member is added, the firm must be reconstituted as a new partnership. The third form, the limited-liability company, or corporation, denotes incorporated groups of persons—that is, a number of persons considered as a legal entity (or fictive “person”) with property, powers, and liabilities separate from those of its members. This type of company is also legally separate from the individuals who work for it, whether they be shareholders or employees or both; it can enter into legal relations with them, make contracts with them, and sue and be sued by them. Most large industrial and commercial organizations are limited-liability companies. This article deals primarily with the large private business organizations made up chiefly of partnerships and limited-liability companies—called collectively business associations. Some of the principles of operation included here also apply to large individually owned companies and to public enterprises. Types of business associations Business associations have three distinct characteristics: (1) they have more than one member (at least when they are formed); (2) they have assets that are legally distinct from the private assets of the members; and (3) they have a formal system of management, which may or may not include members of the association. The first feature, plurality of membership, distinguishes the business association from the business owned by one individual; the latter does not need to be regulated internally by law because the single owner totally controls the assets. Because the single owner is personally liable for debts and obligations incurred in connection with the business, no special rules are needed to protect its creditors beyond the ordinary provisions of bankruptcy law. The second feature, the possession of distinct assets (or a distinct patrimony), is required for two purposes: (1) to delimit the assets to which creditors of the association can resort to satisfy their claims (though in the case of some associations, such as the partnership, they can also compel the members to make good any deficiency) and (2) to make clear what assets the managers of the association may use to carry on business. The assets of an association are contributed directly or indirectly by its members—directly if a member transfers a business or property or investments of his own to the association in return for a share in its capital, and indirectly if a member pays his share of capital in cash and the association then uses his contribution and like contributions in cash made by other members to purchase a business, property, or investments. The third essential feature, a system of management, varies greatly. In a simple form of business association the members who provide the assets are entitled to participate in the management unless otherwise agreed. In the more complex form of association, such as the company or corporation of the Anglo-American common-law countries, members have no immediate right to participate in the management of the association's affairs; they are, however, legally entitled to appoint and dismiss the managers (known also as directors, presidents, or administrators), and their consent is legally required (if only pro forma) for major changes in the company's structure or activities, such as reorganizations of its capital and mergers with other associations. The role of a member of a company or corporation is basically passive; he is known as a shareholder or stockholder, the emphasis being placed on his investment function. The managers of a business association, however, do not in law comprise all of the persons who exercise discretion or make decisions. Even the senior executives of large corporations or companies may be merely employees, and, like manual or clerical workers, their legal relationship with the corporation is of no significance in considering the law governing the corporation. Whether an executive is a director, president, or administrator (an element in the company or corporation's legal structure) depends on purely formal considerations; if he is named as such in the document constituting the corporation, or if he is subsequently appointed or elected to hold such an office, it is irrelevant whether his actual functions in running the corporation's business and the power or influence he wields are great or small. Nevertheless, for certain purposes, such as liability for defrauding creditors in English law and liability for deficiencies of assets in bankruptcy in French law, people who act as directors and participate in the management of the company's affairs are treated as such even though they have not been formally appointed. Partnerships The distinguishing features of the partnership are the personal and unrestricted liability of each partner for the debts and obligations of the firm (whether he assented to their being incurred or not) and the right of each partner to participate in the management of the firm and to act as an agent of it in entering into legal transactions on its behalf. The civil-law systems of most continental European countries have additionally always permitted a modified form of partnership, the limited partnership (société en commandite, Kommanditgesellschaft, società in accomandita) in which one or more of the partners are liable for the firm's debts only to the extent of the capital they contribute or agree to contribute. Such limited partners are prohibited from taking part in the management of the firm, however; if they do, they become personally liable without limit for the debts of the firm, together with the general partners. English common law refused to recognize the limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited partnership by statute, but it has not been much used there in practice. Another distinction between kinds of partnership in civil law—one that has no equivalent in Anglo-American common-law countries—is that between civil and commercial partnerships. This distinction depends on whether or not the purposes for which the partnership is formed fall within the list of commercial activities in the country's commercial code. These codes always make manufacturing, dealing in, and transporting goods commercial activities, while professional and agricultural activities are always noncommercial. Consequently, a partnership of lawyers, doctors, or farmers is a civil partnership, governed exclusively by the civil code of the country concerned and untouched by its commercial code. No such distinction is made in the common-law countries, where professional and business partnerships are subject to the same rules as trading partnerships, although only partners in a trading partnership have the power to borrow on the firm's behalf. Limited-liability companies, or corporations The company or corporation, unlike the partnership, is formed not simply by an agreement entered into between its first members; it must also be registered at a public office or court designated by law or otherwise obtain official acknowledgment of its existence. Under English and American law the company or corporation is incorporated by filing the company's constitution (memorandum and articles of association, articles or certificate of incorporation) signed by its first members at the Companies Registry in London or, in the United States, at the office of the state secretary of state or corporation commissioner. In France, Germany, and Italy and the other countries subject to a civil-law system, a notarized copy of the constitution is filed at the local commercial tribunal, and proof is tendered that the first members of the company have subscribed the whole or a prescribed fraction of the company's capital and that assets transferred to the company in return for an allotment of its shares have been officially valued and found to be worth at least the amount of capital allotted for them. English and American law, together with the laws of The Netherlands and the Scandinavian countries, provide only one category of business company or corporation (in The Netherlands the naamloze vennootschap, in Sweden the aktiebolag), although all these systems of law make distinctions for tax purposes between private, or close, companies or corporations on the one hand and public companies or corporations on the other. English law also distinguishes between private and public companies for some purposes of company law; for example, a private company cannot have more than 50 members and cannot advertise subscriptions for its shares. Under the civil-law systems, however, a fundamental distinction is drawn between the public company (société anonyme, Aktiengesellschaft, società per azioni) and the private company (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [G.m.b.H.], società a responsabilità limitata), and in Germany the two kinds of company are governed by different enactments, as they were in France until 1966. For practical purposes, however, public and private companie
    2014-08-24 09:08:05

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