Depending on the type of commercial company being talked about, the rights and duties to which the partners will be subject will be different. However, and specifically with regard to the rights of the partners, these can be framed within two types common to any commercial company: economic (or economic) rights and corporate rights.
The development, both of rights of the partners and of duties in each of the mercantile companies, is governed in the Spanish legal system according to the Law of Capital Companies.
This law defines the definition of each of the commercial companies that can be created, how to create a commercial company, what are the obligations of the partners of a Public Limited Company, as well as the right of the partner in a Limited Company.
If you are clear about what each of the possible corporate options consists of, you can choose the one that best meets the commercial needs of your company.
What is a mercantile company?
It is an entity with legal personality created for the purpose of carrying out commercial operations subject to company law. They will therefore always have an economic objective.
Types of company
The limited company (or limited liability company) is the most common commercial form in Spain. This is due, on the one hand, to the fact that the minimum capital needs are perfectly adapted to the possibilities of an SME and, on the other hand, to the protection of the personal assets that the entrepreneur is assured, who will not have to respond personally to the possible losses of the company.
A specific type of limited partnership is the single-member limited company,composed of a single partner, but for which the same rules apply as for the generic limited company.
Another type is the limited labor company,in which at least 51% of its capital belongs to workers of the company, with an indefinite and full-time contract.
The second most common type of commercial company in Spain is the public limited company.
Public limited-liability companies are divided into shares which may be freely passed on between the members of a public limited company. The liability is proportional to the capital contributed.
Public limited companies may be listed on the stock exchange. Certain activities (insurance and banks, among others) require this type of commercial company. The procedures for its creation are more complex and expensive than for the limited company.
There is also a specific type of public limited company, the labor corporation,with similar requirements for its formation as those exposed in the case of the labor limited company.
The third type of commercial company is the so-called partnership. In this, all the partners who contribute capital also work for the company and assume its management.
In this case, in relation to the obligations of the partners of the company,they will have to respond to the possible losses of the company with their personal assets.
Finally, the fourth type of commercial company provided for in the Spanish legal system is the limited partnership. It is similar to the previous one with some caveats. For example,the limited partnership may be exempt from the management of the company.
How to create a mercantile company?
There are a number of steps common to the creation of most of the mercantile companies that exist. They are set out in the following points:
- Name of the company.
- CIF request.
- Bank deposit of the callable share capital.
- Notarial deed.
- Payment of the Property Transfer Tax and Documented Legal Acts.
- Registration in the Mercantile Registry.
- Declaration of start of activity.
- Registration in the IAE.
- Registration of the company in the Social Security.
- Registration in the Special Regime of Self-Employed of those who hold administrative positions.
Main obligations and rights of the members of a commercial company
All commercial companies generate a series of obligations and rights of the partners,as briefly explained at the beginning of this article.
Economic or economic rights refer both to the contributions of the partners to the company and from the company to the partners.
Economic rights include the following:
- Right to make capital contributions.
- Right to transfer the status of partner (freely in the case of public limited companies, with the consent of the other partners in the other types of commercial company).
- Right to share in the benefits.
- Right to reimbursement of contributions (for reduction of the share capital, or for the partner abandoning his participation in the company).
Corporate rights refer mainly to the activity that the partner can exercise within the commercial company.
The most important are the right to vote, the right to hold office, the right to hold administrators accountable, etc.
As for the obligations of the partners of a commercial company,generically they are the obligation to contribute the agreed capital, loyalty to the company, submission to the will of the majority, etc.
The Spanish legal system provides for four generic types of commercial companies,each with the obligations and rights of the corresponding partners.
we believe that it will be advisable one type of company or another depending on the number of partners, their activity within the company and type of activity or economic sector to which it belongs.