خلاصة:
The identification of independent legal personality for commercial companies and the explanation of limited liability (in capital companies) for shareholders and partners has led to the design of an organizational structure for the company. This characteristic causes the imposition of business activity risks, including risks arising from the company's organizational defects, onto third parties. These defects refer to the non-compliance with all regulations resulting from the mandatory rules of corporate law and its contractual rules, such as the articles of association. The intra-organizational enforcement of violating these rules is the voidability of the actions and decisions taken. However, due to the fundamental difference between commercial law and civil law in terms of the creation and transfer of rights, and the reliance of commercial law on the apparent creation and transfer of rights against third parties, this nullity cannot be invoked. This issue establishes a rule titled 'prohibition of invoking the company's organizational defects against third parties,' which leads to the 'unenforceability' of 'company organizational defects' against 'good faith third parties.'
ملخص الجهاز:
In this article, in order to explain a protective theory against the earnings that can be raised by the company against third parties, it will first address the recognition of the organizational concept of the company and the necessity of complying with the rules governing companies and the enforcement mechanism for violating them, and then theoretically examine the foundations of protecting third parties and the concept and instances of third parties, and finally, while reviewing the approach the doctrine of separate corporate personality limited liability of Iranian law and its comparison with English company regulations, will be addressed to explain the aforementioned protective theory and the conditions for its application.
Although the invalidity of an act is equivalent to the nullity of that act, applying the enforcement mechanism of nullity does not have the necessary flexibility and adaptability with commercial company law, given the retroactive effect of the institution of nullity in Iranian law (Shahidi, 1388: 23); on the other hand, there are also different approaches regarding cases where non-compliance results in the nullity of the company, its decisions, and its actions.
Clause 1 of Article 40 of the English Companies Act 2006 also refers to the necessity of good faith of the persons contracting with the company and has set it as a necessary condition for not relying on defects related to the lack of directors' powers; however, at the same time, in Article 41 of the aforementioned law, transactions of directors or relatives of directors with the company are considered voidable if they are without compliance with company rules, due to not being considered third parties.
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