Does a company only exist if it is entered in the Commercial Register? Are there companies that exist but are not registered in the commercial register? We will give you some insights.
A simple partnership exists when two or more persons contractually undertake to achieve a common purpose with common forces or means (Art. 530 Swiss Code of Obligations). The simple partnership exists on the basis of the “partnership agreement” and acts only as a community of interests. It is not registered in the commercial register, cannot be registered and has no legal personality.
The company can assume rights and obligations and, for example, issue shares from the moment of registration. If the entry in the commercial register is constitutive, the company can only acquire legal personality through entry in the commercial register and publication in the Swiss Official Gazette of Commerce (SOGC), cf. Art. 936 ff CO. Limitations of liability, as provided for e.g. by the limited company, only take effect then. As a rule, a simple partnership exists before registration (Art. 530, para. 2 CO). If, on the other hand, the entry is declaratory, entry in the commercial register is not a prerequisite for obtaining legal personality.
- Overview
Acquisition of legal personality independent of entry in the commercial register (declaratory entry):
– General partnership, Art. 552 CO (commercial partnership);
– Limited partnership, Art. 594 CO (commercial partnership).
Acquisition of personality by HR entry (constitutive entry):
– Public limited company (AG/SA), Art. 643 CO;
– Limited partnership, Art. 764 para. 2 CO in conjunction with. Art. 643 CO;
– General partnership, Art. 553 CO (non-commercial partnership);
– Limited partnership, Art. 595 CO (non-commercial partnership);
– Limited liability company (GmbH/SARL), Art. 779 CO;
– Cooperative society, Art. 838 CO.
- The importance of the existence of a company
From the moment of existence, the company can, above all, assume rights and obligations and, for example, issue shares. Obligations entered into before registration are, in principle, only binding on the persons acting, primarily on the founding community according to the rules of the simple partnership. However, there are examples of the following deviating provisions:
– Limited partnership, Art. 606 CO;
– Joint-stock company (AG), Art. 644 ff CO;
– Limited liability company (GmbH), Art. 779a CO;
– Cooperative society, Art. 838 CO.
If you have any questions or need assistance with registering in the commercial register, please feel free to contact us (sekretariat@m-win.ch).
Sources:
– Pierre Engel, ‘Contrats de droit suisse’ (Swiss legal contract), 2nd ed., Staempfli Edictions SA Berne, pp. 693 – 729.
– Honsell, Vogt, Watter, ‘Obligationenrecht II Art. 530 – 1186 OR’, Basler Kommentar, Helbing Lichtenhahn Verlag.
– Swiss Confederation, SME Portal, ‘Simple partnership: A quick and easy solution’.
Note: This article was published on our blog by the independent law firm ‘Martin Rechtsanwälte GmbH’.
