Professional Documents
Culture Documents
Chapter 2
• WHAT IS A COMPANY?
UNIT 1 – Introduction to
COMPANY LAW
• All companies results from the express consent of a will
and from a legal act.
• This legal act is mainly a contract, and very less often it’s
a unilateral act (as in the case of sole owner company –
SUARL)
A company is a contract
• There is no doubt regarding the contractual aspect of a
company: it is even mentioned in Art 2 of the Tunisian
commercial companies statute (Code des Sociétés
Commerciales) which states that “a company is a contract”.
• This derives from the fact that you can only create a company
out the EXPRESS AGREEMENT of its founders.
Company as a contract
• When a company is created, and in this case we talk
about INCORPORATION, the will to create obligations
is present in every step: Nobody can force you to be part
of a partnership or to create a company.
…a written contract
• There are also arguments that tend to prove that a company also has an
institutional nature.
• First there are only a few defined types of companies, and you can NOT choose
any different type of company when you create a company.
• You can NOT combine different types of companies and create your own hybrid
type.
• Once your chose your type of company, you are BOUND by all the rules that
apply to it that are for example provided in the CSC, and it is strictly forbidden to
disrespect the imperative rules that apply to it.
But it is also an
institution
• There are 6 types of companies provided by the Tunisian
CSC:
• SNC – SCA – SCS – SARL – SA – SP
Elements of validity
• Companies were first defined in the 1906 Tunisian Code des Obligations
et des Contrats as follows:
• Art 1249: “a company is a contract under which 2 or more persons put
their goods or their work or both of them in common, in order to share
the profit that would derive from it”.
• This is a general definition that could apply to civil and commercial
companies.
• In 2000 when the code des sociétés commerciales was enacted, the
legislator brought a new legal definition of a company:
• Art 2: “a company is a contract under which 2 or more persons decide to
joint their contributions in order to share the profit or benefit from the
savings that could derive from the activity of the company.
• However, in a sole owned company, the company is created by a sole
shareholder.”
Definition of a company
• What are the interests for creating a company?
ECONOMIC INTEREST
• This is the biggest advantage in creating a company: the
procedure separates the shareholders’ belongings from the
created legal person’s belongings.
LEGAL INTEREST
• The more a company grows the more positive impact it
has in its region in terms of job creation, decrease of
unemployment, and social welfare.
SOCIAL INTEREST
• What are the different categories of companies?
Classification of
companies
• This is the category of companies that fall under the definition given in
article 1249.
• The registration rules apply to them, and they usually have a legal person
but are not bound by commercial accounting rules.
Civil Companies
• They are all the companies which usual professional activity falls
under the definition of Art 2 of the commercial code (Production,
Circulation, Entremise, speculations).
Commercial Companies
• These are « Intuitu Personae » companies that are founded basing on personal
considerations.
• The shareholders all know each other personally, and decided to gather in a
company for their interpersonal skills.
• Transfer of shares can only happen if the other shareholders agree, and the death
of one the shareholders can lead to the termination of the company if the other
shareholders do not agree otherwise.
• Such companies are generally family owned, closed to the public, and one of its
legal specifications is the unlimited joint liability of the shareholder proportional
to their belongings/their own patrimony.
Partnerships
• Capital companies – that will later be refered to as joint-stock
companies, are based on the joint monetary contribution of the
shareholder, notwithstanding any personal consideration.
Capital companies
• SARL can NOT be classified as a capital company; neither can
it be considered a partnership.