Extract
CHAPTER III Commercial Associations
SECTION XX - INTRODUCTION
83. Under German, as under English law, commercial associations are either societies (Gesellschaften) or legal persons, corporations (Vereine, Korperschaften). Unfortunately the most important associations of the second type are also called Gesellschaften although they are corporations: thus the Aktiengesellschaft, corresponding to the English company limited by shares, the Kommanditgesellschaft auf Aktien or Aktienkommanditgesellschaft, a combination of an Aktiengesellschaft and a partnership, and the Gesellschaft mit beschrinkter Haftung (shortly called 'G.m.b.H.') corresponding to the English private company. 84. The commercial code itself deals only with the commercial partnership (offene Handelsgesellschaft), the Kommanditgesellschaft (a partly limited partnership), the Stille Gesellschaft (society with a sleeping partner) and the Reederei or Partenreederei (society of part-owners of a sea-going ship). Outside the commercial code, in special laws, we find the following: the Aktiengesellschaft and the Aktienkommanditgesellschaft (these two were formerly included in the commercial code, but are now governed by a law of January 30, 1937); the Gesellschaft mit beschrinkter Haftung (private company; laws of 1892 and 1898); the co-operative society (Erwerbs-und Wirtschaftsgenossenschaft; laws of 1889); the mutual assurance company (Versicherungsverein auf Gegenseitigkeit, law of June 6, 1901).,85. The law regulating commercial associations is partly to be found in the commercial code and in the special laws just mentioned, partly in the German civil code, the BGB. The gaps which exist in the commercial laws are to be filled by the provisions contained in the BGB: (a) Those commercial associations which have legal personality, such as the Aktiengesellschaft, are subjected to rules of the BGB relative to legal persons, ' Vereine '. Thus, for example, section 31 of the BGB is applicable, according to which a legal person is responsible for torts committed by one of its organs within its authority; see on this, Chapter II, section VI, 114 above. (b) Many rules of the BGB on civil partnerships (sections 705-740) apply also to commercial societies, such as the commercial partnership. (c) Finally there are some associations which, though they belong to trade and commerce in respect of their economic function, are governed not by commercial law, but entirely by the rules of the BGB on societies (section 705 BGB). They are notably the following:(aa) The so-called Consortium or syndicate, or occasional partnership (Gelegenheitsgesellschaft). This is a partnership created for the purpose not of carrying on an enterprise, but for one isolated act, or several isolated acts, in the commercial sphere, for example, a society for floating bonds of a public loan or shares of a company. (bb) Partnerships of handicraftsmen or other merchants of lesser degree (see above section VIII). (cc) Many cartels are partnerships of civil law. They are not commercial because they do not carry on a commercial enterprise and have no firm-name. The enterprises of the partners remain separated; (see above section X). (dd) Unterbeteiligung (accessory participation) is best described by an example: X is a partner in the partnership of X, A and B, or a shareholder in the company C; he wishes to rid himself of part of the risk connected with partnership or share. On the other hand, he does not wish to relinquish hi...See the full content of this document
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