Separate Legal Personality
| Author | Elspeth Berry |
| Pages | 43-48 |
Chapter 3
Separate Legal Personality
3.1 MEANING OF SEPARATE LEGAL PERSONALITY
The classic case recognising the principle of separate legal personality for incorporated bodies is Salomon v Salomon & Co Ltd.
The company is at law a different person altogether from the subscribers to the memorandum; and, although it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers, or trustee for them.
3.2 GENERAL PARTNERSHIPS
3.2.1 Lack of separate legal personality
General partnerships in England and Wales do not have separate legal personality (although Scottish partnerships do; s 4(2) of the Partnership Act).
In 2003 the Law Commission and the Scottish Law Commission proposed that separate legal personality be introduced for general (and limited) partnerships,
3.2.2 Consequences
Some of the advantages which flow from, or are enabled by, separate legal personality, can be achieved by English and Welsh partnerships by other, rather more complicated, means; for example, in relation to ownership of the firm’s property (see 4.1), continuity of the firm on a change of partner (see 11.1.1) and the firm’s ability to bring and defend litigation (see 10.1.1). However, other potential advantages cannot, such as limited liability and the ability to grant floating charges (other than agricultural floating charges; see 8.1.2). The Law Commission of England and Wales recommended that partnerships acquire the right to grant floating charges,
Perhaps surprisingly, the Court of Appeal has held that it is possible, in principle, to render a partnership criminally liable as a separate entity from the partners. In W Stevenson & Sons (A Partnership) and Bick v R,
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