Joint business how to organize. Joint business: options for opening an IP

300 price
question

issue resolved

Collapse

Lawyers' answers (8 )

received
fee 33%

Alexander

Good afternoon. Yes, it will, the contract suits you according to the signs simple partnership:

Article 1041 of the Civil Code of the Russian Federation

1. Under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity in order to derive profit or achieve another goal that does not contradict the law.

2. The parties to a simple partnership agreement concluded for the implementation entrepreneurial activity, can only be individual entrepreneurs and (or) commercial organizations.

Article 1044 of the Civil Code of the Russian Federation Conducting common business of comrades

1. When conducting common affairs, each partner has the right to act on behalf of all partners, unless the simple partnership agreement establishes that the conduct of business is carried out by individual participants or jointly by all participants in the simple partnership agreement.

When doing business together, each transaction requires the consent of all partners.

2. In relations with third parties, the authority of a partner to make transactions on behalf of all partners is certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement made in writing.

3. In relations with third parties, the partners may not refer to restrictions on the rights of the partner who made the transaction to conduct the common affairs of the partners, unless they prove that at the time of the conclusion of the transaction the third person knew or should have known about the existence of such restrictions.

4. A partner who has made transactions on behalf of all partners in respect of which his right to manage the common affairs of partners has been limited, or who has concluded transactions in the interests of all partners on his own behalf, may demand compensation for expenses incurred by him at his own expense, if there were sufficient grounds to believe that these deals were necessary in the interests of all comrades. Partners who have suffered losses as a result of such transactions have the right to demand their compensation.

5. Decisions relating to the common affairs of the partners are taken by the partners by common agreement, unless otherwise provided by the simple partnership agreement.

No, this is not necessary, the contract is valid even without notarization.

There are a lot of cooperation agreements on your site, but they all concern legal entities. Do not help me choose a sample contract for individuals, of course with the refinement of their nuances. Thank you in advance!

Preparation of a document is a separate option on the site, or you can contact any lawyer in the chat and order the preparation of a document.

As for the samples that you yourself can use, there are special differences from the contract, where the parties will be legal. there is no face, so you can also use this sample.

Good luck to you!

Respectfully,
Vasiliev Dmitry.

Good afternoon!

I agree with my colleagues about the agreement on joint activities. But why don't you create a 50/50 LLC and conduct this activity on behalf of this legal entity? Resources in an LLC can be invested in authorized capital, and to lease, free use, etc.

From a financial point of view, this scheme is the most cost-effective.

Chat

Mikryukov Alexey

Free assessment of your situation

373 answers

158 reviews

Hello Sergey.

As my colleagues rightly say, a simple partnership agreement is regulated by the Civil Code.

Article 1041

1. Under a simple partnership agreement
(joint activity agreement) two or more persons (partners)
undertake to combine their contributions and act jointly without formation
legal entity for profit or to achieve otherwise
illegal purpose.

2. Parties to a simple partnership agreement,
concluded for the implementation of entrepreneurial activity, may
be only individual entrepreneurs and (or) commercial
organizations.

3. Features of a simple partnership agreement concluded for the implementation of joint investment activities (investment partnerships) are established federal law"On Investment Partnership".

That is, if the purpose of the partnership (joint activity) is to achieve profit (entrepreneurial activity), then the individual partners must have the status of an individual entrepreneur.

Notarization of the agreement on joint activity is not required.

well and approximate form between two physical persons I do not have, but it is easy to fix. Order it via chat and it will be ready. ;-)

Well, as a bonus - a scheme regarding a simple partnership (may come in handy)

Sincerely, Mikryukov Alexey

Joint activity Joint activityEntity.doc Entity.doc

Hello

Will an agreement concluded between individuals on the joint conduct of business (without the creation of an LLC and other forms of enterprise, the question of responsibility for conducting commercial activities not covered in this question)

Alexander

Controversial question. On the one hand, the law does not provide for the existence of contracts of this type. On the other hand, there is the principle of freedom of contract. I think that this agreement should be considered from the standpoint of existing judicial practice. That is, as far as I understand, the contract is needed in order to protect yourself in case of incorrect distribution of profits. That is, can you win a court case if and as a result of violation of such an agreement.

Do I need to certify this kind of contract in a notary's office? And are notaries allowed to certify such contracts?

Alexander

Since such an agreement is not named in the law in principle, then the notarial certificate

Good afternoon Alexander.

Will a joint business agreement concluded between individuals be legally binding (without the creation of an LLC and other forms of enterprise, the issue of responsibility for conducting commercial activities is not considered within the framework of this issue)?

Alexander

In my opinion, such an agreement will not have legal force. As Irina noted above, in this case, your actions will qualify as entrepreneurial. By current legislation in order to carry out business activities, it is necessary to have an appropriate legal status Sole Proprietor, or establish a commercial legal entity with relevant goals.

Consequently, any actions of citizens (including the conclusion of any agreements) aimed at conducting joint business activities in circumvention of the rules established by the state for conducting such activities will be considered null and void in the eyes of the state.

Those. after the conclusion of such an agreement, you will not be able to enforce its execution, because. there are no appropriate legal mechanisms for regulating such relations.

Thus, you either need to register an individual entrepreneur / legal entity and enter into the simple partnership agreement described above, or establish a joint legal entity.

In my opinion, any agreements between citizens on the conduct of any business activities do not give rise to any legal consequences.

Sincerely,

According to Art. 421 of the Civil Code of the Russian Federation

Citizens and legal entities are free in custody
contracts.

Coercion to conclude a contract is not allowed, for
except in cases where the obligation to conclude a contract is provided for
this Code, the law or a voluntarily accepted obligation.

2. The parties may conclude an agreement, either as provided for or
and not prescribed by law or otherwise legal acts.

3. The parties may conclude an agreement containing
elements of various agreements provided for by law or other legal
acts (mixed contract). To the relations of the parties under a mixed contract
apply in the relevant parts of the rules on contracts, the elements of which
are contained in a mixed contract, unless otherwise follows from the agreement of the parties or
essence of a mixed contract.

4. The terms of the contract are determined at the discretion of the parties, except
cases where the content of the relevant condition is prescribed by law or other
legal acts (Article 422).

In cases where the terms of the contract are provided for by the norm,
which is applied insofar as the agreement of the parties does not provide otherwise
(dispositive norm), the parties may, by their agreement, exclude its application
or set a condition different from that provided for in it. With absence
of such an agreement, the condition of the contract is determined by a dispositive norm.

5. If the terms of the contract are not determined by the parties or
dispositive norm, the relevant conditions are determined by the customs of business
turnover applicable to the relationship of the parties.

Too, you have the right to conclude one contract - mixed
contract.

DECISION
Plenum of the Supreme Arbitration Court
Russian Federation
Moscow#16March 14, 2014

Freedom of contract and its limits clarified

1. In accordance with paragraph 2 of article 1 and article 421
of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) citizens and
legal entities are free to establish their rights and obligations on the basis of
contract and in determining any conditions that do not contradict the law
contracts.

According to paragraph 4 of Article 421 of the Civil Code of the Russian Federation, the terms of the contract
determined at the discretion of the parties, unless the content
the relevant condition is prescribed by the rules binding on the parties,
established by law or other legal acts (imperative norms),
valid at the time of its conclusion (Article 422 of the Civil Code of the Russian Federation). In cases where
the term of the contract is stipulated by the rule, which is applied insofar as
agreement of the parties does not establish otherwise (dispositive rule), the parties may
by their agreement to exclude its application or to establish a condition different from
provided for in it. In the absence of such an agreement, the terms of the contract
is determined by the dispositive norm.

In applying these provisions, courts should take into account that
the norm defining the rights and obligations of the parties to the contract is interpreted by the court on the basis of
from its essence and goals of legislative regulation, that is, the court takes into
attention not only to the literal meaning of the words and expressions contained in it, but
and those goals that the legislator pursued by establishing this rule.

That is, you are free to establish your rights and
obligations on the basis of the contract and in determining any non-contradictory
the law of the terms of the contract.

Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 19, 2010 to
case N A79-7792/2009"..

As follows from the case file, the municipal unitary
enterprise "Leninsk district department of housing and communal
economy” (legal predecessor of the Enterprise, customer) and the Company
(contractor) entered into a contract for maintenance, sanitary
maintenance and current repair of housing stock and adjoining territories from
02/01/2008 N 11, under the terms of which the contractor assumed an obligation to
on behalf of the customer to perform work on maintenance, sanitary
content and current repairs housing stock, engineering infrastructure and
adjoining territories located at the customer on the right of economic management
(operational management). general characteristics housing stock, targeted
list of objects handed over by the customer to the contractor for safety and operation
housing and non-residential stock, list engineering equipment, data on
adjoining territories are given in Appendix N 1. The list, composition and
the frequency of work is given in Appendix N 2 (clauses 1.1 and 1.2
of the agreement). In pursuance of the terms of the agreement, the Company completed the work and provided
services provided by the contract, and presented them to the customer for payment.
The specified works and services are accepted by the customer according to acts without
comments. Non-fulfillment by the Company of the obligation to pay 312,673 rubles 39
kopecks of debt was the basis for the Company's appeal to the arbitration court with
this claim. The legal relationship of the parties is based on a mixed contract,
containing the elements of an agreement paid provision services and contracts
contract..."

That is, your legal relationship will not be based on a mixed
an agreement containing elements of an agreement for the provision of services for a fee and
contract agreements...

T Thus, you should conclude a mixed contract.

I can provide a contract drafting service.
With uv.

Is it possible to open joint business with friend. Why doing business together can be profitable or risky. How to draft a joint business agreement. How to conduct a joint business with a friend, wife, other relatives. About all this in order.

Why do people open a joint business

The main reason for discussing a joint business is the need for a significant investment of time, money and effort to organize your business in the first steps. Although there are other advantages of joint business. The main one is a joint investment in a new business. Everyone individually always has less money compared to joint savings.

Pros and cons of joint business

Advantages of joint business

Decrease starting financial risks and investments. This item is attractive in that joint business allows you to reduce the amount of personal investments of each shareholder for business development.

Check your partners urgently!

Do you know that tax authorities during verification can cling to any suspicious fact about the counterparty? Therefore, it is very important to check those with whom you work. Today, you can get information about your partner's past checks for free, and most importantly, get a list of detected violations!

Reducing labor costs. Of course, personnel in business is everything. But different important factor- Employees need to be paid. People need to pay money even when initially there are no sources of funding. Therefore, at the start of your business, it is important to minimize financial costs.

The most effective option in this case is to take on all the main functions together with a partner. Since, unlike an employee, an entrepreneur is always ready to work for free to establish and develop his business. However, it is not always possible to correctly and effectively solve emerging problems on your own, but with a partner it is easier.

Effective counteraction to competitors and supervisory agencies. A newly created business is quite vulnerable. It can be destroyed even by ordinary banking tax audit which can be resorted to by competitors with connections in regulatory bodies.

It is possible to resist such problems only at the expense of our more powerful ties. A lone entrepreneur is forced to rely only on his own strength and acquaintances. Collective business allows you to combine the acquaintances and connections of partners.

reinforced think tank. Sometimes there are cases of a certain entrepreneurial stupor, when a businessman finds himself in a dead end, not seeing a possible way out of the situation. In this case, the opinion of a partner who is also interested in business development can help.

Mutual psychological support. Business is not devoid of many stressful situations that can lead to stress for the entrepreneur, even provoke state of depression. Any failure negatively affects a person’s confidence, up to a state of depression. In such situations, the psychological feeling of support is extremely important - you are not alone, there is a partner nearby.

Cons of joint business

- Difficulties in business management. All partners have equal rights, everyone knows how “it is better to act in a certain situation”, and also has the principles of business process management, team leadership. At first it seems that there will be no problems with the coincidence of views of partners, you can always find a compromise. But in practice, very controversial and contradictory situations arise when companions act like a swan, cancer and pike.

- Loss of sense of ownership. Each of the participants does not feel like a 100% owner of this business. The more partners, the less sense of ownership each has.

- In the event of a collapse, it is difficult to divide assets. A joint business may fall apart, it is time to share its remains. And you will be seriously lucky if you manage to leave even at the stage of registering a business. It is much more difficult to share an established, operating business with a formed customer base, competent employees, valuable assets and a business reputation.

- Former partners can become bitter enemies. Money leads to serious hostile disputes. Therefore, it is better to think again before starting a business with a relative or friend. Better think about working with strangers to stick with just business relations without familiarity.

- The joint business is bound to fall apart. Practice confirms that at some point the joint business ceases to exist. Possible successful work company for 5-10 years, but then it falls apart or becomes the property of one person.

Where to look for a partner for a joint business

- Among good friends. Don't confuse them with close friends. With the latter, it is categorically impossible to do business.

But with friends you can start a joint business. Namely, these are people with whom you somehow intersect in life, occasionally contact and communicate, but do not have close friendships. They are nice to you, the relationship is positive. With them, you can maintain the distance necessary for effective work, but close friendship is detrimental to business.

- In the Internet. In today's dynamic world, you can use the Internet, there are many places available to find like-minded people and potential partners to start a future project.

1) Business forums - there are a lot of such sites interesting people willing to share experiences and advice.

2) Thematic forums dedicated to specific area activities.

4) Blogs of entrepreneurs.

– Among active people involved in network marketing. There are a lot of smart and promising specialists in the field of network marketing. They have already confirmed in practice their desire and willingness to do business - they quit their jobs, learn from their consultants, look for clients, improve results, etc.

This involves people with a fairly active life position– you can easily find a suitable companion. To do this, you can get a job with them, after a month you can leave and take a worthy companion with you.

- Your director can become a partner. It is possible that you offer your boss a partnership. After all, he has solid experience, a distance is maintained between you. If you have a decent idea, the boss feels the potential in you, it is likely that you will start a joint business. But a successful partnership is possible with a liberal leader. But in the case of an authoritarian boss, you will always be perceived by him as a subordinate, constantly pressing and insisting on your decisions.

– Among specialists from the field of your future business. Another interesting option is to establish cooperation with specialists with excellent ability to understand the chosen industry.

How to choose a partner for a joint business

A partner cannot be a relative or friend. The most common mistake made by aspiring entrepreneurs is to start a joint project with close friends or relatives. It is widely believed that such people can be completely trusted. But it is important to take into account that in business people work under a contract, everyone takes on certain obligations.

It must be the leader. Companions lead future project so everyone should be a leader. Since everyone has to work on the development and promotion of their project, to be the driving force.

Entrepreneurial qualities. The future partner should be a real entrepreneur, have everything necessary qualities. An important condition, because without an entrepreneurial streak, a business will quickly collapse.

The proximity of companions in philosophy and mentality. It is important for partners to understand each other easily and quickly. They should be united by much in common, making companions a real team. The importance is also given to the similarity in life principles, mentality, etc. But do not confuse these qualities with ordinary friendship.

Good connections, the ability to establish them. After all, connections are essential for business success. The corruption of officials and the imperfection of legislation sometimes lead to conflicts and lawlessness on the ground.

Financial stability. In any business, there are some risks, including financial. Among other things, debts and loans from one of the partners can lead to consequences for the business.

Willingness not only to take, but also to give. An important psychological nuance that can tell a lot. Watch your potential partner. Attention deserves his readiness to actually provide some assistance, to take on the performance of not the most pleasant work. After all, business is considered a constant compromise between the parties, with high dedication and investment in joint success.

What Should Be Included in a Joint Business Agreement?

Sum start-up capital contributed by each partner. When starting a business, entrepreneurs make an initial investment. Sometimes equal amounts are provided, and in some situations the amounts may be different. Be sure to document the initial investments of the parties.

Shares of the value of the company (as a percentage) belonging to each partner. Each party should be assigned a percentage share of the business. It refers to percentages, not exact amounts. After all, with the development of a business, its value will increase, and let's not forget about the impact of inflation.

Functional responsibilities each partner. It must be taken into account that a business partnership implies an equal status for the owners. Therefore, having found a companion for computer games, one can threaten with punishment. After all, he is the same director as you. Therefore, it is necessary to conclude an agreement with a clear indication of who and what part of the work should be performed.

Responsibility for poor performance or non-performance of duties. To schedule duties is the correct condition, but, in addition, it is also necessary to agree on the punishment for failure to fulfill these duties - for example, in the form of a fine, deprivation of part of the profit, etc.

Profit distribution. Sometimes disputes arise immediately after receiving the first profit. In order to avoid disputes over the distribution of business, it is necessary to regulate the conditions and mechanism for distributing profits by contract.

Decision-making mechanism. In a joint business, decisions are made by all owners. Therefore, it is recommended to supplement the contract with a clause reflecting that decisions in the company will be made unanimously. Although it is possible to establish more democratic options, depending on the situation - for example, more than half of the votes.

Right to sign. There is a subtle nuance here. After all, people are different. You start a business with one person in whom you are completely confident. But years later, it already becomes different, there may be doubts about decency. Will he sign any important documents whether to sell shares of the company. Therefore, it should be noted that the contracts must indicate the signatures of all partners on responsible documents.

Ways of pre-trial settlement of conflicts in business

Sergey Palkin, Head of the Center for Mediation and Resolution of Commercial Conflicts, Ardashev & Partners

Arbitration court. The parties to the conflict turn to the mediator, who is the arbitrator. If the parties have not reached an amicable agreement, the arbitrator has the right to adjudicate the dispute that has arisen in arbitration - with a decision that is binding on both parties and is not subject to appeal in court.

Mini court. The dispute is resolved with the participation of corporate executives, company lawyers and a third independent person who presides over the hearing. Prior to the mini-trial, the parties usually informally exchange the main evidence, documents, a brief written statement of the evidence, the substance of the case. Also, by mutual agreement, the parties determine the timing and format of the mini-trial.

Private judicial system, or "judge for hire". A variety of pre-trial proceedings for resolution different types disputes with the help of judges who have retired, for a rather high fee. They have the right not only to reconcile litigants, but also to make a decision binding on both parties. An experimental form of conflict resolution, used today only in jurisdictions that have legalized it.

As withleave an agreement on the division of a joint business

The joint business division agreement is necessary condition. This document should be drawn up and signed before starting a common business. At the very beginning of the partnership, an ideal relationship awaits you, so you can quickly find “common ground” on all points of this agreement.

– Derivation of the formula for estimating the value of the company. It is possible to calculate the assessment of the company's image, personnel. It is better to turn to analysts and economists. In the case of a business division, you can make sure that this money was not spent in vain.

– Conditions for the exit of the partner from the business.

- What does the partner take when leaving.

– Inheritance of a share. Usually a joint business is built over the years, but anything can happen in life. Therefore, regulate the principle of inheritance of the share of the participant by his relatives in the contract, stipulating their rights to manage the company.

- Mechanism for the sale of the company. Sometimes the parties decide to sell the business. If the sale mechanism has not been agreed upon, various difficulties may arise - for example, one is ready to sell a share only at full cost, and the second is much cheaper. And the second one declares - I'm selling my share, and you yourself resolve issues with the new owner.

- Terms of business liquidation. Sometimes even with all the efforts to sell the business fails. The only way out is the liquidation of the business and the division of assets. Therefore, it is important not to forget to indicate the conditions for the liquidation of your company in the main contract.

If you decide to sell your share in the business

Alexander Zhitnich, partner of the company "Personal tax management", Moscow

If you are planning to sell a share of the business, then you will have the necessary procedures. I recommend checking certain points:

Company charter. The first thing that deserves attention. You need to check how the document regulates the conditions for the sale of shares. Several situations are possible in this regard:

Sale is permitted and / or requires the consent of the founders. In this case, it is necessary to send a notice to the co-owners about their desire to sell part of the share. It is necessary to specify the terms and price in this notice. Participants within 30 days can exercise their pre-emptive right to buy.

Sale prohibited. You will not be able to sell a share to a potential partner or other outsiders. The action plan depends on your goal.

If you plan to appoint a new manager, the only option is to convene an extraordinary meeting of the company's members with the issue on the agenda. After all, you do not have the right to single-handedly make this decision without obtaining consent from partners.

If you are looking to raise money by selling a share, there is such an opportunity. However, this requires at least one of the following conditions to be met. The first is the refusal of the co-owners to purchase a share and / or no consent was given to the sale. The second is if a majority decision is made on a major deal, but you objected. In such a situation, you will have to draw up an application for withdrawal from the membership of the company. Your share will go to the company and you will be given its value.

But the following nuances should be taken into account:

– is the share under pledge; if the share was used as a guarantee for a bank loan, then the consent of the bank is required for the transaction.

- were you married at the time of the purchase of the share; if they were married, then the share will be regarded as jointly acquired property, the consent of the spouse for alienation is required.

If the partners of the joint business are husband and wife

Family joint business - the main advantages and disadvantages

Joint interests;

Support. After all, a team is created to run a business, sometimes it’s not easy to cope on your own;

Confidence. Understanding that this person can be relied upon;

Lack of masks. We know our relatives better, we understand their reaction in a state of conflict, stress, etc.

Everything in the family. The joint business of the spouses will make it possible to achieve savings on personnel, on paying money to a third-party partner;

- "I'm tired". Spouses spend too much time together at home and at work, there may be a lack of personal space and time;

- "I want love". Being together for too long can lead to a sexual chill in the relationship. The couple is so passionate about joint business affairs that it is difficult to return to normal.

A few rules for joint business

Define and maintain a clear division of responsibilities.

You have to remember that you are a team. Participants do not need to compete within the team, only the other team should be challenged.

Don't forget about breaks. Set aside a day during the week when you can spend time with each other and family.

Learn to switch off from everyday problems and routine, surrendering to feelings. Show your imagination, provide an appropriate atmosphere, setting a mood that promotes relaxation and pleasure from communication.

Suggest, but don't teach.

Act as an adviser, not a judge.

The family business is more sustainable than any other

Larisa Fedorova, co-founder of Media Trade

The PwC survey “Private and Family Business: A Reliable Model for the 21st Century” confirms that 63% of respondents representing family businesses believe that they have a more entrepreneurial spirit. And with a larger business development, this statement is more true.

The main factors for the stability of such a business are trust and family ties. If in a critical situation partners can simply divide the company and run away, then relatives try to avoid a critical conflict and solve the problem.

Usually, the leaders of such companies are more responsible in creating jobs and choosing employees. AT Hard times more than others, they try to keep employees, including third-party specialists. Also noteworthy is the strong corporate culture, the value system in companies where relatives work.

Information about authors and companies

Larisa Fedorova, co-founder of Media Trade. Owner family business. Conducts individual training in Internet marketing and promotion on the Web, consults in the field of increasing sales in small and medium-sized businesses. Author of books and publications in specialized media on Internet marketing and sales.

"Media Trade" specializes in the organization of distance training and education. Founded in 2009. Staff - seven employees. Official site - en.discret.com

Alexander Zhitnich, partner of the company "Personal Tax Management", Moscow. Partner of the company "Personal Tax Management", Moscow.

"Personal Tax Management". Field of activity: tax consulting. Number of staff: 12.

Sergey Palkin, Head of the Center for Mediation and Resolution of Commercial Conflicts, Ardashev and Partners. Graduated from the Ural State Law Academy. Mediator, lawyer (for 14 years of practice - dozens of concluded amicable agreements), director of the Conflict Resolution Center, head of the NP "League of Mediators" representative office in Yekaterinburg. Ardashev & Partners was founded in 1995 in Yekaterinburg. Specializes in providing legal and consulting services, professional protection of private property, assets and business, resolution of managerial and economic disputes. Official site - www.ardashev.ru

Lawyer Spiridonov M.V. 24.02.2017

Disputable issues of recovery of funds invested in joint business

As you know, running a business involves risks. Many people want to do business together, with the investment of common funds and the distribution of profits. But not always investing money in doing business brings favorable results. It often happens that the person who has invested cash in joint business, turns out to be in the red to one degree or another, since the money is invested, but there is no business as such.

In this regard, in this article I want to consider various situations, in which the invested funds can be recovered, as well as to consider situations in which the recovery of funds invested in the conduct of a joint business is not possible.

Unfortunately, many persons wishing to carry out joint business conduct are initially legally illiterate, formalizing the transfer of funds from one person to another for the organization and conduct of business using all kinds of receipts, written obligations, etc. Correct legal registration joint entrepreneurial activities can be carried out in various ways, for example, by organizing a legal entity with the distribution of shares in the charter capital between persons wishing to jointly conduct business, introducing a new entity into the structure of participants in a legal entity that invests money in joint activities, conclusion between persons of a simple partnership agreement (Article 1041 of the Civil Code of the Russian Federation) in accordance with the provisions of Chapter 55 of the Civil Code of the Russian Federation. There are quite a few legally correct ways to organize a joint business, but to this day, often illiterate registration of a joint business leads to negative consequences which are discussed below.

Situation #1.

Several individuals decided to organize a joint business for the sale of goods. They decided to entrust the organization of the business to one participant, to whom, in turn, to transfer the funds necessary for its implementation. The persons agreed that the organizer would register the firm, and other persons who contributed to the organization of the business would receive a profit. As a result, the company was not created, the organizer of any activities for the implementation of entrepreneurial activities did not carry out, he disposed of the funds at his own discretion. The transfer of funds was executed using handwritten receipts.

In this case, there are signs of unjust enrichment of the organizer of a potential business at the expense of contributions from other persons. If during the consideration of the case it is established that the participant who received the funds for the organization of joint business did not carry out any actions, did not search for counterparties, did not spend the funds received for the purposes of the joint business, but turned it in his favor, then he, accordingly, without for any reason, enriched himself at the expense of funds received from other participants.

Under the above circumstances, within the framework of civil law relations, the situation in question falls under the provisions of Article 1102 of the Civil Code of the Russian Federation. According to paragraph 1 of the said article, a person who, without statutory acquired or saved property (purchaser) at the expense of another person (victim), is obliged to return to the latter the unjustly acquired or saved property (unjust enrichment).

Accordingly, persons who invested funds in such a situation have the right to apply to the person to whom the funds were transferred with a claim for the recovery of the transferred funds as unjust enrichment.

In addition, the actions of a person who turned in his favor the funds transferred to him for organizing a business can be considered within the framework of criminal law relations. If it is established that such a person initially did not want to organize a business, and his organization was a reason to receive funds from other persons, then signs of fraud may be seen in the actions of such a person (Article 159 of the Criminal Code of the Russian Federation). If it is established that a person planned to carry out business, but, for reasons depending on him, did not do this, having disposed of the funds at his own discretion or appropriating the funds for himself, then such actions can be considered as a criminally punishable act - misappropriation, embezzlement (Article 160 of the Criminal Code of the Russian Federation).

Situation #2.

The situation is similar to the previous one. Several individuals decided to organize a joint business for the sale of goods. The organization of doing business was entrusted to one person, all participants made material investments in doing business. The organizer conducted activities to search for counterparties, purchased goods, made attempts to sell the goods, created a number of legal entities that were needed to run the business. At first, there were no disagreements between the partners; issues of interaction, the need for investments, and other issues related to the conduct of joint activities were discussed.

However, due to a number of reasons, the business turned out to be unprofitable. The persons who contributed funds to the joint business decided to recover the contributed amounts from the organizer, just as in the previous situation, motivating their claims by unjust enrichment of the organizer at the expense of their investments.

For such disputes arbitrage practice is not unambiguous. Thus, the courts point out that for an obligation to arise from unjust enrichment, a combination of circumstances is necessary:

1. The increase and saving of property, which actually characterizes unjust enrichment on the part of the acquirer.
2. Reduction (non-increase) of property (losses) on the part of the victim.
3. A causal relationship between these two categories, that is, the losses of the victim are a source of enrichment for the acquirer.
4. Lack of proper legal basis for the said property consequences to occur.

In the presence of these circumstances, unjust enrichment arises (Article 1102 of the Civil Code of the Russian Federation).

If during the consideration of the case it is established that there is no unjustified saving on the part of the acquirer, there is no increase in property at the expense of the victim, then there can be no unjust enrichment. The burden of proving unjust enrichment, including proving the fact of such enrichment, at the expense of the victim, its quantitative indicators, the amount of enrichment is subject to proof by the plaintiff as the injured party.

When establishing the fact that the organizer has carried out actions aimed at doing business, confirming the targeted spending of funds, the failure to receive the expected profit can be regarded by the court as an entrepreneurial risk, and on this basis it was concluded that there was no unjust enrichment on the part of the defendant (business organizer).

Accordingly, under the circumstances set forth, the claim for the recovery of unjust enrichment (the recovery of funds invested in the joint conduct of business) may be denied.

Conclusion.

In practice, there may be many other situations related to the desire of persons to return the funds invested in joint business. In one article it is impossible to consider all the variety of such cases. This article described the key points in two similar situations, when establishing which a claim for the recovery of funds invested in a joint business may be satisfied, or such a claim may be denied. The situations are considered on examples of specific cases from judicial practice.

In order to minimize the risk of a situation like those described, it is necessary to initially legally competently approach the registration of joint activities, if problems have already arisen, then it is necessary to correctly assess the legal relationship that has arisen in order to establish the presence or absence of grounds for applying for judicial protection. For this, two similar situations were cited, with completely different consequences.

14May

Hello! In this article we will talk about the forms of joint activity of individual entrepreneurs.

Today you will learn:

• How can individual entrepreneurs unite for joint profit;
• How to draw up an agreement between the participants of the activity;
• when merging.

How can SPs merge?

There are several forms of such joint activity:

• One individual works, and several more partners work unofficially with him;
• simple partnership;
• Joint work of IP and LLC.

The first case is the most unreliable and can become a reason for disagreement among the participants in a voluntary union. One individual entrepreneur has an official status, is registered with the tax authority as a taxpayer. Other allies officially cannot participate in this IP in any way, since an individual entrepreneur, by law, includes only one individual.

It turns out that all the profit belongs to the owner of the business, and in case of any disagreement, the rest of the participants may be left with nothing.

To prevent this from happening, loan agreements are usually drawn up. Those participants who have contributed to the development of the company draw up a loan for the contributed share in relation to the IP itself. The profit received by the company is distributed among all participants in proportion to the contributions.

Most often, this form of cooperation between individual entrepreneurs and individual found between close relatives. Unfamiliar faces are unlikely to decide to engage in this form of business.

At the same time, the owner of the IP is officially engaged in all the affairs of the company, he also submits reports to the tax authority. The remaining members of the union can only help in current activities.

This form of cooperation is the least common. Let's talk about other types of unions in more detail, since they are much more common in everyday life.

Create a partnership

A simple partnership is a form of association of several individual entrepreneurs. This is a beneficial cooperation that allows the parties to the agreement to unite own resources and point them in the right direction. Since there is more capital and property in the event of a merger, it is possible to make more big deals, which are not allowed for one IP.

When forming a partnership, each of the participants contributes its share to the development of the joint business.

She can act as:

• Money;
• Some property (for example, you have your own office that you want to transfer for the purposes of the partnership. This also includes cars, equipment. If you, then you also have the right to offer it to the newly-made union for profit purposes);
• Useful acquaintances (if there are influential people in your environment who can contribute to development, feel free to tell the new partnership about it);
• Skills and knowledge (do you know the algorithms for compiling accounting entries or are you well versed in vehicle repair? Then you can apply your skills for their intended purpose).

All profits that the IP association receives are distributed among the participants within the limits of their initial contributions. This means that the resulting profit is immediately divided by the number of participants.

Depending on what condition for the distribution of income will be spelled out in the agreement between the allies, the profit can be divided equally or within the agreed limits.

If the partnership for some period of time worked at a loss, then it will be distributed among the participants proportionally. That is, each partner risks his own property within the limits of his contribution.

Each member of an association consisting of several individual entrepreneurs has the right to represent the interests of the partnership. He can conduct transactions, appear in court or make purchases of goods.

IP joint activity agreement

This agreement is a simple partnership agreement, you can use it and modify it to suit your needs.

• Download contract

We open LLC

Several IPs (at least two) can. This is a more serious and responsible form of pooling your own contributions. is liable only for the property of the company. personal property, vehicles, money and other property does not participate in the life of the association.

When creating an LLC, a constituent assembly of participants appears. It also accompanies the activities of society throughout the entire time of existence. Any decision is made only by such a meeting.

As a result of the meeting of all the founders, a certain decision is made, which is entered in. This document is stored in the organization and may be required for both the tax authority and banking institutions.

All possible activities of two or more individual entrepreneurs in the created society are specified in. Here the association itself is prescribed. By law, it cannot be less than 10,000 rubles. An LLC can have up to 50 members.

The work of the society is built on the common contributions of the participants. Unlike IP, and. LLC is considered the most reliable partner in transactions, and therefore it is trusted by a significant number of counterparties than individual entrepreneurs.

Opening and maintaining an LLC is a rather costly process. However, this form of association allows you to expand the boundaries own business and reach a higher level. It makes sense to create an LLC if there are several applicants and they are going to conduct large-scale production.

Can sole proprietors and LLCs interact?

It is not uncommon for an alliance between individual entrepreneur and society. Let's say you are an entrepreneur on favorable conditions, but understand that doing business on your own becomes burdensome for you.

If you have familiar founders from an LLC who can use your premises, then drawing up an agreement will be beneficial to both.

Joint activities of IP and LLC are accompanied by the conclusion of an agreement for a specific period of validity. In this case, the IP acts as a partner of the LLC and has the right to profit from joint activities. This form of cooperation will be in the nature of a simple partnership. In the considered case, the IP contributes its right to rent as a share.

The agreement between the members of the union outlines all parties to the transaction and highlights the profit of each member. Such an alliance has a beneficial effect on the development of IP. If you interact with an LLC as an individual entrepreneur, then your business will go uphill in case of favorable events.

We take into account the nuances in the agreement

In any form of joint activity of an individual entrepreneur, it is necessary to competently conclude an agreement between the participants of the union. Mandatory indication of even the most insignificant conditions will avoid difficulties in further activities and clearly delineate the scope of rights and obligations of all partners.

The agreement must include:

• The volume and content of the share of each participant (it is necessary to indicate the contribution of partners and the percentage that it makes up of the common property (future profit) of the partnership);
• A clause stating that the contributions made are joint shared property;
• Ways to cover losses by each participant;
• Contract term;
• Responsibility of the parties (you can include a line indicating that if the partnership incurs losses due to the unsuccessful actions of one of the participants, then the latter will cover the costs);
• The rights and obligations of each business partner;
• Item about respect for the property of the association.

The rights of members of an association usually include:

• Free access to the property of participants;
• Familiarization with financial statements;
• Carrying out transactions on behalf of the partnership;
• Getting income.

Reporting to the tax

If several individual entrepreneurs are combined into a simple partnership, then it is necessary to take into account in the reporting the financial flows of such a partnership and the movement of capital, affecting only a particular individual entrepreneur.

This is reflected in the income and expense ledger. It must be conducted in such a way that at the end of the reporting year it is clear which flows relate to joint activities, and which ones appear in the activities of the IP itself.

Moreover, each member of the association will have its own book. General reporting is not allowed.

This is important for a possible audit from the tax authorities. If there are any inaccuracies or discrepancies in the book, you will need to provide supporting documents. If there are none, then penalties will be applied to entrepreneurs, additional tax payable and, accordingly, penalties for late payment will be charged.

For those entrepreneurs who practice, the creation of a partnership is not allowed by law. The same applies to those who apply "Income" with a tax of 6% of profits.

Such restrictions are connected with fraud among entrepreneurs in the past. Individual entrepreneurs deliberately underestimated their own income and paid minimal taxes to the country's budget.

Paying is also important to consider. Those individual entrepreneurs that are on the simplified tax system, as a rule, do not pay VAT. However, when concluding an IP agreement with an LLC, you need to be careful.

Above, we described the case when an individual entrepreneur rents premises and is ready to enter into an agreement with an LLC. The individual entrepreneur himself should not pay VAT on rent, but when concluding an alliance, the individual entrepreneur must continue to manage the lease. Otherwise, the tax authorities may regard this fact as a sublease, for which you will have to pay VAT.

Good day to all! Looking through the materials already published on the site the other day, I came up with the idea that for the successful start of a new project, many of us may simply not have enough start-up business capital. Despite this fact, I personally know many people who would be only too happy to profitably place their accumulated savings.

Of course, there is an alternative called “bank deposit”, but there is also a certain risk there, and you won’t earn much on a deposit. Here in this case there is a docking of the two sides, both of which are united by a common vector - how to make money.

Suppose you have already thought about this topic, but have not made a final decision for yourself. Let's take a closer look at what a business for two is, the pros and cons of such a project, as well as its feasibility and organizational difficulties.

As in every business, in a joint business, partners are warned of their own characteristics, which should be prepared for. But I will start, nevertheless, with the advantages that distinguish a business for two:

• Decrease initial investment for . It is clear that the easiest way is to register a business alone, hire staff yourself and collect the cream. But in our time, even for ordinary trading, a certain capital is needed, which will allow you to stay afloat and not burn out in the near future. And for some business dollars
• Reduction of risks, which are divided proportionally among all participants. This is especially true for new lines of business, and in cases where participants do not have full-fledged experience as a merchant
• Savings on labor costs initial stage. It often happens that the invested funds are only enough to organize a business, and there is no longer enough money to hire several people. So the companions have to spin on their own. But doing it together is much faster and more efficient. Take, for example, the same controlling organizations and funds - how many of them you need to run around in order to obtain permits. This can help optimize business costs at the initial stage of the project.

• "One head it's good, but two better". Together it is easier to overcome the first failures and figure out how to counteract the same inspection bodies. What does not come to one's mind, the second partner will tell. After all, no one is immune from difficulties, and creative ideas do not come to mind every day.

This also includes mutual psychological support of partners. The first failures can easily undermine self-confidence. In this case, one of the partners can successfully lend a shoulder to the other. The feeling that next to you there is a partner who is no less interested in success than you common business might be great, no matter what.

What should be feared by future partners

At the same time, I would like to highlight the following main problems that await partners in a joint business:

1. The sense of ownership becomes more vague. To understand what this leads to, it is enough to recall Soviet era with its principle "Everything around is collective farm, everything around is mine." Of course, this does not happen in every joint project, but it is absolutely clear on a psychological level that the more owners there are, the more difficult it is to consider yourself a full-fledged owner. As a result, there is a loss of interest in their offspring and the potential collapse of the business model.
2. Difficulties in management. As soon as there is more than one owner, everyone begins to pretend to be a kind of professional manager and business executive. Everyone is trying to impose their point of view on what should be effective business processes and communications in the team. Gradually, forces are invested not in the development of the case, but in the tug of war. The problem of “how to be in charge” is inherent in most joint projects, and few manage to get out of it with dignity.
3. Deterioration of personal relationships. Unfortunately, the well-known parable on the topic of how to make an enemy out of a friend by lending him money is shown here in all its ins and outs. Moreover, conflicts can arise when the first difficulties arise, as well as with the first successes of the enterprise. For this reason, it is best to start a joint business not with a relative or friend, but with a stranger. In any case, relations in such a situation can not be sought to be preserved.
4. The issue of profit sharing. Despite the apparent simplicity, not only losses quarrel partners, but also a positive financial results. In fact, if the business begins to bear fruit, then involuntarily there is a feeling of dissatisfaction with the fact that you have to share money with someone else. In other words, you will receive only half of the profit, and not all of it, and this, in its own way, must also be able to survive.

Procedural tricks of setting up a business for two

Now let's talk about how to arrange a joint business, and what pitfalls exist here. The simplest is registration. individual entrepreneurship, but this form provides only sole participation in the business from a legal point of view. If one of the partners trusts the other enough, then this method has the right to life.

Another thing is that you need to somehow secure your start-up capital. A loan agreement will come to the rescue, which is concluded between two equal persons. Such an agreement must be drawn up for each deposited amount of start-up capital. In this case, the second participant, the one for whom the business is not registered, will be able to claim at least compensation for their initial investments.

A slightly more complicated, but also safer way is to register both partners as entrepreneurs. Further, they conclude a partnership agreement between themselves, which may be referred to as an "agreement on the conduct of joint activities." It prescribes all the necessary rules that relate to the rights and obligations of each participant, the authority to manage the project, and the distribution of profits.

The disadvantage of this path is the need to submit reports and pay taxes in double size. But on the other hand, each of the participants will have full-fledged guarantees of security and financial responsibility, and this costs much more.

It is even better to follow the path of registration and creation of a joint company, for example, a limited liability company (LLC). Of course, it makes sense to register an enterprise for 2 founders at once, and not for one. If the registration of a business is carried out only for one of the partners, then he will have the rights solely. If any problems arise, it will be virtually impossible to prove anything to the second of the private traders.

So, both participants draw up a memorandum of association, which specifies the participation of each of them in the form of cash contributions, contributed assets, as well as their shares. The contract is sealed by the signatures of both partners and has quite significant legal force. Depending on the initial capital contributed, each of the participants will own a certain percentage of the ownership of the business.

How to amicably disperse companions

Another interesting and important point is how to divide an existing business into two. Such a need may arise regardless of whether things are going well or not. When the partners have decided to part, it is important to correctly divide the assets and existing losses.

The greatest difficulties arise precisely in the division of losses, since this is what everyone will have "in the red", but not "in the black". The most loyal way is that both participants sit down at the negotiating table and agree amicably. Because otherwise you will have to go to the judiciary.

Raise all the agreements concluded at the initial stage. Assess the degree of participation of each of the parties proportionally and in monetary terms. If a specific property has been contributed as assets and it has been preserved, then the question of its right holder should not be raised at all.

The contract could contain a clause on the return of capital after the development of the project. Pay attention also to the points in which the powers of each of the parties were regulated. All this can be reduced to a mathematical component and evaluated in monetary terms, which will help participants exit the business with minimal losses.

Friends, I hope you could benefit from this material. Finally, I note that a joint business with another person is best done if you have the same views on the principles of doing business. And I’ll also say that without decent relationships that are built on mutual respect, a long-term business for two cannot be built. Therefore, carefully approach the choice of your companion. Subscribe to our news and stay up to date useful information from the world of business and finance. See you!