Is it possible to assign a joint account contract?,,es,Condemnation of the construction company and insurer for constructive defects,,es,Guide on the patrimonial responsibility of the educational administration,,es,Life insurance and health questionnaire filled out by the employee,,es,Responsibility of the administration in public procurement,,es?

cuentas en participacion

The contract accounts participation is based on trust and therefore, It can not be transferred to third parties

Consult your case now

The section 15 de la Audiencia Provincial de Barcelona, in ruling 363/2018 30 May, noted the inability to terminate a contract of participation accounts for the transfer thereof without authorization, based on trust as a fundamental element of the contract and the impossibility in the accounts of the consideration received.

Antecedentes

Inverpsik and Illuminati Production Group signed two contratos de cuentas en participación, one 25 November 2011 y otro de 23 February 2012, for the production and exploitation of the musical show Grease.

Consideration of the payment made by Inverpsik, Illuminati would give this one a 3,5% the result of the show.

Although contracts stipulated that it was not possible transmission joint account without consent in the accounts of, the amounts were transmitted to Pinkerton Productions, who performed the production and exploitation of the show.

In 2012 Operating results declined and operating license to a third company who leased the production of the work without yielded favorable results.

Inverpsik filed a request for an ordinary trial for terminate the joint account with compensation for damages, contra Illuminati Production Group S.L.

Primera Instancia

The Commercial Court of Barcelona nº7 by sentence 2 February 2016 estimated demand and declared the contract terminated account participation Inverpsik S.L.U signed by the companies Illuminati Production Group S.L.. y Pinkerton P.S.A. S.L., forcing them to return the money and extending liability to the directors of the companies.

The defendants filed appeals based on the following reasons:

  • Violation of Supreme Court jurisprudence regarding participation accounts indicating that the participant does not have a credit return of capital contributed, but you have the right to profit as stated in the contract.
  • Error in assessing the evidence claiming compliance musical production by Illuminati and because the latter only outsourced the exploitation of the work Pinkerton.
  • Error of law by considering that the declaration of breach of contract would only constitutive effects, namely, the liquidation of the participation account.

Provincial Court

Hall brought up the criteria set forth in Supreme Court ruling 30 May 2008 where he said:

The participation accounts […] They have been described in the literature as' an associative formula between individual or social entrepreneurs that enables one contest (participant) in the business or enterprise of the other (manager), being both a result of the success or failure of the last '. (…) Do not believe it, Unlike what happens in society irregular, a common heritage between the unitholders, and provided to the domain manager passes (SSTS 20 July 4 December 1992, 5 February 1998, etc.). venturer, thus, Credit does not have a return of capital contributed, but he claims the right to earnings ratio is established.

En sentencia de 29 May 2014 the same court reiterated the above definition stating that "The company differs in two key notes, on the one hand, missing in the contract participation account the financial autonomy, as noted the STS 6 October 1986 , as a social heritage is not, It receives contributions exclusively owned and manager; and, on the other hand, not an entity with legal personality that is characteristic of corporations is created, which they are constituted in accordance with its regulations with”.

Room included within the doctrine of his argument Vicent Chuliá to define the participation account contract as a bilateral cooperation agreement, where a subject (cuentaparticipe) patrimonially brings to an entrepreneur (manager), generating an obligation on the latter to apply that provision to a particular activity independently and on its own behalf and to report, accountable and involve the participation in the profits and losses , limiting the latter to the contribution made.

Hall stressed that it is a contract based on trust of the parties so that the duties of trust and loyalty "can justify restrictions on the right of disposal, transfer or assignment of the account manager received by third parties”.

Given these considerations, the Chamber understood that participation in contracts there was agreement that would allow the transfer of the contract to third parties.

As for the breach of contract of participation accounts, The Chamber found that it was incurred because Illuminati did not act with the diligence of an orderly businessman by not keeping accounts clearly and orderly, thus breaking once again the relationship of confidence preclude this contractual typology.

The Chamber noted that the transfer of the exploitation of business Illuminati Pinkerton, He frustrated any reasonable expectation of receiving in the accounts of the committed quota, because the manager failed to exploit the business.

Conclusion

The Chamber concluded that committed an serious breach of contract of participation accounts toda vez que the trust relationship broke, cuentapartícipe not getting enough information and that accounts Illuminati had no standards of care themselves of an entrepreneur.

Consult your case now

 

Leave a Reply

Language


Set as default language
 Edit Translation


Subscribe to receive a book PDF


Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter



Subscribe me

* This field is required