Commercial companies are the legal manifestation of the will of two or more people to exist under a company name, pursuing the same end through the contribution of capital, thus obtaining a benefit.
For a commercial company to have legal personality , it is necessary that it complies with a social element , constituted by the partners, a patrimonial element , which would be the capital contributed and finally a formal element, which would be the rules relating to the form of the contract that gives rise to society.
In the Spanish legal system, mercantile companies can be of a personal or capitalist type . The main difference between these is the preponderant element, in personal companies this element would be the identity of the partners, in capitalist companies it would be the capital they contribute.
Despite being two large types of mercantile companies that exist in Spain, they are subdivided , so there are various classes or types that can be found at the time of establishing any of these.
Mercantile Society: Personal companies, duties and rights of the partners in them
In these personal companies, what is important are the characteristics of the partners since they are the ones who will manage it. So the success of the company depends on its partners. They may be:
- Collective Society: It is the simplest among its sisters, a number of partners will contribute an amount of money and the management of the company will depend on themselves.
In this company all partners have the same rights, duties and obligations, which will be determined according to the contract that originates the company because we remember that these are legal manifestations of will.
It is characterized in that the partners will respond in an unlimited way for the expenses and debts that the company has, in addition to being jointly and severally liable between them.
- Simple limited partnership: It differs from the previous one by the types of partners it has . In this society, some partners have the duty to contribute work and capital (general partners), while others only contribute capital (limited partners).
The general partners will have unlimited and joint liability, in addition to being in charge of managing the company. On the other hand, limited partners have limited liability .
Capitalist companies, rights, duties and obligations of the partners
In these companies, what is important and what determines the rights, duties and obligations of the partners are the amount of capital they contribute.
Unlike personalist companies, in capitalist companies the quality of partner is transferable and the management of the company is usually entrusted to a third party.
They can be limited partnerships by shares , where the capital is divided by shares and the partners can be collective, respond personally, and limited partners, respond only for their capital.
Corporations , which differ from the previous one only in that the partners are not personally liable for corporate debts.
Limited liability companies, in this the capital is divided into partitions. The partners do not have the right to transfer ownership of their partitions, and they are not personally liable for its obligations.
Difference between personal and capitalist companies
The main difference lies in the rights, duties and obligations that the partners have, in partnerships they always respond in an unlimited and personal way.
In capitalist companies it depends on what type of partner you are, but generally you respond in a limited way, only with the capital contributed.
In addition, since personal companies are characterized by the human contribution that their partners have, the quality of these cannot be transmitted, which is the case in capital companies, as the capital contributed is the predominant element.
As has been observed, both types of companies have advantages and disadvantages , it will depend on the reason for which the type that is better is to be established.
