Legal Personality and Partnerships: A “Mixed Legal System” Perspective?
What does it mean to say that a partnership, in any given legal system, possesses legal personality? At times legal personality is treated as a uniform idea: a bright line is drawn between those legal systems in which partnerships possess it, and those in which they do not. The question is more complicated, however. Legal personality denotes an ability to act in group form. Groups require to take different legally relevant steps, such as entering contracts, owning property and suing in appellation. Partnerships may possess some but not all of these and other attributes or possess certain of them in theory but not in practice. Kraakman et al, for example, place relatively little significance on legal personality: it is “a convenient heuristic formula”, or a “handy package that conveniently bundles [attributes] together” (R Kraakman et al, The Anatomy of Corporate Law, A Comparative and Functional Approach, (3rd edn, 2017) 8).
This lecture explores the idea of legal personality by reference to both the Scottish and South African legal systems. These legal systems nicely illustrate how difficult it is to treat legal personality as a unitary idea in a partnership context. Comparison allows us to assess whether there is common ground between the two legal systems, and whether it is possible to identify a “mixed legal system” approach.