Corporate covenants - clauses, covenants, agreements between associations of companies - Daniel-Mihail Sandru

The "word before" of the volume, which we reproduce below, is signed by the renowned specialist Gheorghe Buta.

The pacts (conventions) between the partners represent a manifestation of the contractual freedom in the matter of the commercial companies. The commercial companies constituted by the need to ensure the convergence of the energies and individual resources of the associates - insufficient for the achievement of a real economic progress - have not replaced, not even by the general meetings that function within them, as a way of expression, the role of the associates.

In order to protect both the social interest and their particular, individual interests, the associates within the commercial companies usually conclude conventions regarding certain societal rights on which they can dispose.

The agreements between the associates are therefore of a contractual nature, with all the consequences deriving from such a qualification, just as a general way of setting up commercial companies.

The foundation of any company with several associates is a collective legal act, respectively a contract, by which several persons decide to associate in order to carry out a commercial activity and agree, through a statute adapted to their needs and proposed objectives, on how in which they understand to organize both the relations between them, as members of the respective entity, and the functioning of the commercial company. This considering that participation in society involves compliance with a collective discipline, which is found in several well-known legal concepts: affectatio societatis, the principle of preeminence of social interest, the principle of equal legal status between partners and the principle of majority. And the associates, through agreements, clauses and agreements, tend to create, during the development of the company contract, a network of contracts through which they enrich or restrict the legal rights and obligations related to the quality of associate.

Under these conditions, the contract - as a bivalent expression of both freedom and coercion - could give rise to tensions and even a conflict between the common interest of the partners and the personal interests of them or of some of them. And when this conflict cannot be extinguished or settled by the associates, the justice is called that, based on the legal dispositions, but also on the basis of the statutory and contractual provisions, to settle it.

Associates who are part of a company whose very existence may be the subject of controversy or even controversy, inside or outside it, must understand as accurately as possible the objectives they can achieve within this entity, as well as the rights they have. may act as members thereof.

We consider that, to this necessary understanding, the present monograph, in its second edition, can make an important and useful contribution. Law no. 31/1990 on commercial companies represents the general legal framework regarding the establishment, organization, functioning and disappearance of commercial companies in Romania, a series of laws and other normative acts with special character regulating different “special” types of commercial companies, all these provisions being completed. , where applicable, with the provisions of the Commercial Code or those of the Civil Code. But, from the vast subject of the regulations on commercial companies - which could be designated by the phrase, insufficiently comprehensive, perhaps, "company law" - the author of this monograph and proposed to examine and expose only the aspects related to the relations between partners ( including from the future associates) “from the moment of negotiating the incorporation of the commercial company or of the inclusion of new associates, by modifying the constitutive act, during the existence of the company”.

The author, through the way of exposing and analyzing the approached approach, follows and manages to demonstrate that the successive changes made in the matter, "have increasingly provided a beneficial framework for agreements / understandings between partners", the possibility of partners to negotiates, in the different stages of the establishment and functioning of the company, being an application of the principle of contractual freedom, within the limits imposed by the legislator. Analyzes on issues related to the regime of agreements between partners, clauses, pacts, general agreements and those between partners in different types of companies establishing the company's headquarters and freedom of establishment in the European Union and resolving disputes between partners through arbitration are thorough, and solutions and the author's assessments on these issues are correct and well-founded, with arguments resulting from both legal regulation and doctrinal research and jurisprudence. In conclusion, through precise systematic analyzes and documents on the proposed topic, through the solutions given as well as through the bibliographic and jurisprudential information it offers, this monograph is an information and useful tool primarily for associates in companies and future partners in such companies, but also for those who, in the activity of scientific research or in the practical one, are preoccupied with the legal problems of the commercial companies.
 

Dr. Gheorghe BUTA Associate Lawyer - Musat & Asociatii