Affectio societatis

The affectio societatis is the will common to several natural persons or morals to join. It is an element characteristic of the company, like one of its components, as that appears clearly in articles 1832 and 1833 of the Civil code.

Definition

There is no legal definition of the will to join, it is thus the jurisprudence and the doctrines which defined it.

The traditional doctrines define the affectio societatis like a voluntary collaboration, activate, interested, levelling. The voluntary and active character of collaboration makes it possible to distinguish the company from certain involuntary groupings such as the syndic of joint ownership. The interested character makes it possible to distinguish the company from association. It made the object of criticism based on the fact that in many companies, there is no really collaboration on behalf of the associates (example: purchasers out of purse). The levelling character as for him became non-existent: there are almost always majority associates and minority associates in the companies.

Another doctrines define the affectio societatis like a will “of union” or a simple convergence of interest. This idea of convergence of interest of associated in the deed of partnership stresses a characteristic of the situation (different from the bilateral contracts, where the interest of a part is generally opposed to the interest of the other). It is a vision of the things which was also criticized, because there is in fact often divergence of interests between the majority ones and the minority ones, for example for the distribution of the benefit (the majority ones being often remunerated leaders, they seldom wish to distribute the benefit, contrary to minority).

Lastly, third doctrines define the affectio societatis as the will which must exist at the time of the formation of the company, materialized by the assent with the deed of partnership (assent which must, according to these doctrines, to necessarily exist at the time when the company is created). This design of the affectio societatis as an assent with the deed of partnership is regarded as more coherent than the designs of collaboration and convergence of interest.

Jurisprudence takes again the doctrinal designs: the Court of appeal defines the concept of affectio societatis like the implicit or explicit will of the associates to collaborate together on an equal footing in the continuation of their interest. The affectio societatis does not have the same intensity according to the shapes or the types of companies.

Role

The affectio societatis is a criterion of qualification and of existence of the deed of partnership, it is used to distinguish the company from certain situations, such as the work contract or the contract of joint possession.

The distinction enters the deed of partnership and the work contract

The distinction between the deed of partnership and the Work contract is in relatively easy theory: in the work contract, there is a subordination connection; this one is excluded in the deed of partnership where the associates must be on an equal footing.

Example: when several people work together and did not make a contract explicitly, the judge can have to qualify the situation which is subjected to him. If one of the people concluded a contract with a third for the needs for the common activity and that this one did not pay, the possibilities of recourse against the person who concluded with the third will be different according to whether one is in the presence of a work contract or of a deed of partnership. If there is a subordination connection (work contract), it will not be possible to continue the person subordinated, according to the principle which an employee cannot be held of the debts of his employer. If there is no subordination connection (deed of partnership), the question is then to know which is the nature of the deed of partnership, because - under certain conditions all the associates are held of the debts contracted for the operation of the company.

The distinction enters the deed of partnership and the contract of joint possession

The Indivision is a state of the goods: it is the situation in which several people have together the property of the same good or a number of goods. Each indivisaires has a fraction of the good of the unit, but not of privative right on this part.

Company and joint possession can be compared insofar as they are both of the techniques which authorize the collective appropriation of the goods.

Examples: successional joint possession, in the event of death and presence of several heirs (all the heirs will be in joint possession to the act of division who will put an end to this joint possession in their allotting a concrete share); lease of a boat or purchase of a building organized by a convention of joint possession.

One distinguishes primarily four points from comparison:

the origin: the company has necessarily a voluntary origin while the joint possession generally has a legal origin (one “falls” in joint possession); even if since the law of 1976 it can also result from a convention of joint possession, therefore voluntary (one “puts oneself” in joint possession).
duration: the company has one 99 years given maximum duration being able to be extended while the joint possession is a precarious state (“no one cannot be constrained to remain in the joint possession” according to article 815 of the Civil code, constantly one of the indivisaires can require and cause the division); however, since the law of 1976 a convention of joint possession can envisage one five years renewable maximum duration.
management: the company has leaders (named by the associates but having a rather great autonomy) who have the capacity to act as his name, while in the joint possession, the rule is in theory that the decisions are made unanimously (each indivisaire has the right to veto); however, since the law of 1976, a convention of joint possession can designate a manager of the joint possession having capacities copied on those of the husbands in the matrimonial mode of the community ( capacities less wide than those of the manager of company).
legal entity: the company is equipped with the legal entity, while the joint possession is not to in no case a moral person, but a simple assumption of joint ownership. The debts contracted for the undivided goods are in theory personal debts of the indivisaires; however, there exist from now on “creditors of the joint possession” of which the credit ( “liability of the joint possession”) was born either with creation from the joint possession, or during the joint possession with regard to the maintenance and the improvement of the individual goods, and who can be made pay on the undivided goods.

In 1976, an important reform of the mode of the joint possession considerably brought the joint possession closer to the company. It does not remain about it less than company and joint possession does not have the same finalities: the company is adapted than the joint possession for a dynamic management while the joint possession is adapted than the company for a quiet management, patrimonial, nonprofessional.

The concepts of company and joint possession can amalgamate: companies can be in joint possession.

The distinction enters the deed of partnership and the trust deed

The distinction enters the deed of partnership and the contract for services

Coexistence of institutional and contractual aspects of the company

If the company is contractual, freedom is essential, while if the company is institutional, of the rules of law and order are to be respected.

According to the substantive law, before the laws of 1978 and 1985, the company was defined like a contract: “the company is a contract” (article 1832 of the Civil code). Since the laws of 1978 and 1985, the company is defined at the same time like an institution and a contract: “the company is instituted by a contract” (even article). Many provisions and formalities of the company law are particular and specific to an institutional nature: rules of formation and recording; legal entity; capacities of the managers defined by the law (they are not thus any more of the agents of associated); necessary majority to make decisions and to amend in the many shapes of company (what is different from the contractual logic, which supposes the unanimity).

There are a coexistence of institutional aspects and contractual aspects of the company, which are not the same ones according to the shape of the company: if the company is not a moral person, then the company is truly a contract; if the company is a moral person, then the company is strong institutional - even more thorough in the joint stock company except for the simplified Joint stock company (SAS) which is strong contractual.

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