Another form of business collaboration
Among the various forms of business collaboration, there is one that, due to its unique nature, represents a kind of transition between a commercial company and a mere contractual relationship: the joint venture agreement. This hybrid character is evident in its systematic placement within the Commercial Code, as it is regulated in Title II of Book II (articles 239 to 243), following the section on commercial companies and preceding the section on commercial contracts.
The joint venture agreement has been defined by the doctrine as a collaboration agreement between two parties, by virtue of which one of them ("joint shareholder") contributes property, money or rights to another ("manager"), the latter being obliged to apply said contribution to a certain operation or operations or to a certain business or professional activity, which he will carry out independently and in his own name, and to inform, render accounts and give participation to the joint shareholder in the profits and losses that result.
This figure, as an associative and collaborative formula, offers several advantages over other institutions with which it shares common features, such as the loan agreement or the company itself.
a) It allows the hidden maintenance of the participation of one or more people in an activity that is not their own, unlike in a company.
b) It does not create an obligation to satisfy an interest or to return what was contributed.
c) No social assets are created, nor is an entity with its own legal personality (such as a company) created, with its consequent formal obligations.
d) It is a less rigid and more flexible institution than society.
e) It does not require any formality.
f) In case of success, the account holder can obtain a greater share in the results than through the use of other means, and, in case of failure, limits their losses to the amount contributed.
However, it is also important to bear in mind that, as a consequence of the characteristics listed, certain risks arise for the account holder and, to a lesser extent, for the manager:
a) Since neither an estate nor a legal personality is created, the contributions of the account holder enter into the assets of the manager, and are subject to the vicissitudes that the manager may suffer in all his activities, including all those in which the account holder does not participate.
b) As a consequence of the above, it is advisable that the account holder be contractually provided with the right to be periodically informed of the economic evolution of the activity shared with the manager, as well as the manager's own economic evolution.
c) Since the account holder only has a credit right consisting of participation in the success of a certain activity, it is essential to clearly specify (i) the object of the contract (the activity or business in which the account holder participates), (ii) stipulate what will be understood by success, (iii) how the result of the activity will be calculated and (iv) what that participation will be, and how it will be determined.
d) The manager will be responsible for the activity towards third parties, responding with all his present and future assets to the creditors arising from the activity itself, without any limitation.
In short, it is an institution that is especially attractive to those who engage in activities that require a large investment and in which it is preferable or desired that the participants who finance them do not appear before third parties, but which, in any case, requires the need for a clear and detailed regulation of the rights and obligations of the parties.
Andreu Pujol
Commercial – Litigation Area
Àmbit Assesor
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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