Company law, Dissolution of partnerships for the inability to achieve the corporate purpose, Court of Milan, Section specialized in the field of enterprise, ruling of 13/11/2017
Court of Milan, in Collegial Composition, Section specialized in the field of enterprise, sentence no. 11387/2017 filed on 13/11/2017, on the issue of dissolution of partnerships due to the inability to achieve the corporate purpose
Essential lines of the topic
The request for verification of the dissolution of the … s.a.s is based on the unquestionable fact, dating back and fully current, that the … s.a.s. he has been without a director for almost three years, since neither the shareholders have been granted either on the appointment of a new partner nor on the liquidation of the company.
This situation has caused an irremediable acefalia of the limited partnership, which led to the failure to present and approve the financial statements for the 2014, 2015 and 2016 financial years and, more generally, to a susceptible paralysis, if not to bring the … s.a.s. failing, certainly to prevent it for a significantly prolonged period and indefinite continuation of the completion of any operation: except those that … here is censured for unlawfully placed in place despite the intervening judicial revocation which, far from changing the picture described, they aggravated it.
Believes the College that, only for this and in adherence to the orientation of the jurisprudence of legitimacy on this point, is in the presence of a patent cause of dissolution due to the impossibility of the operation of the limited partnership and therefore, pursuant to the combined provisions of Arts. 2272 n. 2 second part (2293) and 2315 c.c., of impossibility to achieve his object ….
The Court declares that … … s.a.s. it is in a state of dissolution due to the inability to achieve the corporate purpose.
The sentence examined adheres to the orientation of the jurisprudence of legitimacy expressed by Cass., Sec. 1, Sentence n. 12732 dated 28/11/1992 (RV 479778 – 01), according to which, if the only general partner is judicially deprived of the right to administer, analogous art. 2323 co. 2nd cod. civ. (pursuant to which, if all the general partners cease to exist for the period indicated in the preceding paragraph, the limited partners shall appoint a temporary administrator for the execution of the ordinary administrative acts), but a cause for the dissolution of the company is determined of operation, taking into account that the power of administration is reserved exclusively to the general partner.
Source case law of companies
