La affectio societatis en los actos constitutivos de sociedades por acciones simplificadas.

Abstract

The affectio societatis is based on two assumptions: the will of the persons, natural or juridical, to constitute a company; and the intention to remain active and participative, and to watch over the development of the company formed. This element has been developed by the doctrine as a substantial requirement of the company contract; however, such attributed quality has varied over time due to the development that has been granted in each legal system. Such is the case of the Ecuadorian legislation, in which the affectio societatis constitutes a subjective element characteristic of the contract of corporate nature, so that, although it is not required, its existence is recognized. Faced with the incorporation of the Simplified Joint Stock Company, which is presented as a flexible company type that brings with it the possibility of being constituted by unilateral act, the question arises as to the presence or absence of this element (affectio societatis) in the referred unilateral act. The sole appearance of the partner suggests the opposite of the intention to associate with others. In order to obtain the answer to such approach, we will develop the affectio societatis, its origin, definition, and the positions adopted by different writers; and, the Simplified Joint Stock Company, its incorporation, characteristics and forms of constitution. Finally, the territorial analysis of such figures will be entered and the existence and influence of the affectio societatis in the beginning and continuity of the Company will be determined.