Post by xyz3000 on Feb 12, 2024 11:00:00 GMT 5.5
The legal discipline of the business company provides, as a general rule (article 1028 of the Civil Code), the liquidation of the shares of the partner who dies, admitting the three exceptions contained therein, always linked to the will of the partners. This generic approach to the law does not eliminate the risk of erroneous judicial decisions, which threaten the continuity of the company, as they end up imposing on the remaining partners the admission of an heir, and even assigning him the position of administrator, which violates the corporate legal regime and makes it unfeasible to company management. This serious mistake arises from the erroneous interpretation of hereditary succession within the scope of Corporate Law. From the perspective of civil law, hereditary succession transmits possession and control of the deceased's assets to heirs.
However, from the perspective of Business Law, the death of a partner does not imply the heir's entry into the partnership, not automatically granting him the right to be a partner, but only the eventual credit corresponding to the inherited shares, because what is transmitted by Estonia Email List inheritance is their property. The principle of affectio societatis , which guides the constitution of a partnership, requires the consent of the partners for any change in the corporate structure, as, due to the personal nature of the partnership, reciprocal trust is a prerequisite for its constitution and compliance with its social object. In short, in light of the corporate legal regime, an heir is not a partner, whether he is the successor of the minority or the majority.
By recognizing the heir's right to credit corresponding to the shares, civil law is complied with, without challenging the systematics of Corporate Law, under which the will of the partners of a partnership must be respected, under penalty of breach of affectio societatis and violation of the constitutional principle of freedom of association and contract. If the doctrine does not allow the hereditary transmission of the status of partner in a partnership, much less of the position of administrator, the remaining partners cannot be compelled to accept the heir into the management of the company. The criteria for choosing the administrator is based on their personal characteristics, as the position requires credibility and aptitude to manage the company's business, attributes that are not transferred by inheritance.
However, from the perspective of Business Law, the death of a partner does not imply the heir's entry into the partnership, not automatically granting him the right to be a partner, but only the eventual credit corresponding to the inherited shares, because what is transmitted by Estonia Email List inheritance is their property. The principle of affectio societatis , which guides the constitution of a partnership, requires the consent of the partners for any change in the corporate structure, as, due to the personal nature of the partnership, reciprocal trust is a prerequisite for its constitution and compliance with its social object. In short, in light of the corporate legal regime, an heir is not a partner, whether he is the successor of the minority or the majority.
By recognizing the heir's right to credit corresponding to the shares, civil law is complied with, without challenging the systematics of Corporate Law, under which the will of the partners of a partnership must be respected, under penalty of breach of affectio societatis and violation of the constitutional principle of freedom of association and contract. If the doctrine does not allow the hereditary transmission of the status of partner in a partnership, much less of the position of administrator, the remaining partners cannot be compelled to accept the heir into the management of the company. The criteria for choosing the administrator is based on their personal characteristics, as the position requires credibility and aptitude to manage the company's business, attributes that are not transferred by inheritance.