The legal persona of commercial partnerships

Abstract

Chapter 1 will introduce the reader to the three types of commercial partnerships provided for under Maltese law, namely the partnership en nom collectif, the partnership en commandité and the limited liability company. An examination of Maltese legislation will be tackled in relation to the technicalities involved for the formation and registration procedure leading to the birth of the commercial partnership. Once the latter is registered, an independent legal persona is brought to life. The registration of a commercial partnership in law signifies an important point from which certain fundamental consequences ensue. This will be followed by what a legal persona entails. Chapter 2 will delve into the conferment of separate legal personality granted and afforded by law to commercial partnerships. This will be followed by a historical overview of the recognition of the commercial partnership's distinct legal personality, both by the judiciary and by legislation. An investigation of the influence generated by the English historical development in the sphere of corporate distinct personality will be assessed. An outline of certain relevant features which are relevant in distinct legal personality will conclude. Chapter 3 will go through a thorough analysis of the Salomon's case which is universally acknowledged as authority for the principle of separate legal personality. This case engraved an important mark in the recognition and consequent development of the concept. After an appraisal of the Salomon's case, other subsequent foreign and local judgments, which judicially reaffirmed the principle, will be highlighted. Chapter 4 will proceed by delineating the effects which ensue from the recognition of the commercial partnership as a separate legal persona. The concept of the independent legal personality paves way to important legal implications which will be analysed. This chapter continues by evaluating whether in practice the independent legal persona has any significance in regard to all the three species of commercial partnerships. It will be assessed whether distinct personality has any value particularly vis-à-vis the partnership en nom collectif and whether it should be maintained. Chapter 5 will explain the circumstances in which the courts and the legislation disregard the independent legal personality of the commercial partnership and impose liability on the individual shareholders and partners. By virtue of an analysis in case-law, it will be examined if the courts show any consistency and any predictability in veil lifting. The final chapter takes into the realm ·of corporate responsibility in contract, tort and crime. It will evaluate the responsibility, if any, imposed on the commercial partnership as an actor in contractual, tortuous and criminal proceedings. This chapter will try to discover which acts done by natural legal persons will be deemed as the commercial partnerships' own acts. It will proceed by exploring if this artificial legal persona has any standing as a plaintiff in instituting court proceedings.