10 Pages Posted: 16 Feb 2005
Date Written: February 2005
The many legal forms for business organizations that first appeared in the U.S. during the last thirty years - the Limited Liability Company (LLC), the Limited Liability Partnership (LLP), the Limited Liability Limited Partnership (LLLP), and the statutory Business Trust - all combine the pattern of creditors' rights, or asset partitioning, that is traditional to the business corporation with the freedom of contract among investors and managers that is traditional to the partnership. To view these new entities as partnership-like is to treat the degree of freedom of contract as the essential difference between the traditional corporation and partnership forms; to view them as corporation-like is to treat the pattern of creditors' rights as the essential difference. While recent scholarship often takes the former view, the latter seems more accurate. History shows that much of the contractual inflexibility in the traditional corporation served merely to buttress its pattern of creditors' rights, and that this inflexibility fell away upon the development of substitute sources of investor protection. The new forms are thus better understood as part of a continuing development of the corporate form rather than as entities more akin to the traditional partnership, which has in fact been evolving in a different direction.
The essay first develops this argument in terms of the tradeoff between contractual freedom and the form of asset partitioning that to date has received the most scholarly attention - that is, limited liability. It then explores the evolution of the new forms from a less familiar perspective, focusing on the entity shielding component of asset partitioning.
Keywords: Corporations, Partnerships, Organizations, History, Limited Liability Companies, Legal Entitites, Asset Partitioning
JEL Classification: D23, G32, K22, N80
Suggested Citation: Suggested Citation
Hansmann, Henry and Kraakman, Reinier and Squire, Richard, The New Business Entities in Evolutionary Perspective (February 2005). Available at SSRN: https://ssrn.com/abstract=667929 or http://dx.doi.org/10.2139/ssrn.667929