ВУЗ:
Составители:
Рубрика:
a mirage or delusion for a new, untested business, and thus also explains why some enterprises are not incorpo-
rated despite the ease of creating a corporation.
Another textbook myth is that limited liability explains why corporations were able to attract vast amounts
of capital from nineteenth-century investors to carry out America's industrialization. In fact, the industrial revo-
lution was carried out chiefly by partnerships and unincorporated joint stock companies, rarely by corporations.
The chief sources of capital for the early New England textile corporations were the founders' personal savings,
money borrowed from banks, the proceeds from state-approved lotteries, and the sale of bonds and debentures.
Even in the late nineteenth century, none of the giant industrial corporations drew equity capital from the
general investment public. They were privately held and drew primarily on retained earnings for expansion.
(The largest enterprise, Carnegie Brothers, was organized as a Limited Partnership Association in the Com-
monwealth of Pennsylvania, a status that did not inhibit its ability to own properties and sell steel in other
states.)
External financing, through the sale of common stock, was nearly impossible in the nineteenth century be-
cause of asymmetrical information – that is, the inability of outside investors to gauge which firms were likely
to earn a profit, and thus to calculate what would be a reasonable price to pay for shares. Instead, founders of
corporations often gave away shares as a bonus to those who bought bonds, which were less risky because they
carried underlying collateral, a fixed date of redemption, and a fixed rate of return. Occasionally, wealthy local
residents bought shares, not primarily as investments for profit, but rather as a public-spirited gesture to foster
economic growth in a town or region. The idea that limited liability would have been sufficient to entice outside
investors to buy common stock is counterintuitive. The assurance that you could lose only your total investment
is hardly a persuasive sales pitch.
No logical or moral necessity links partnerships with unlimited liability or corporations with limited liabil-
ity. Legal rules do not suddenly spring into existence full grown; instead, they arise in a particular historical
context. Unlimited liability for partners dates back to medieval Italy, when partnerships were family based,
when personal and business funds were intermingled, and when family honor required payment of debts owed
to creditors, even if it meant that the whole debt would be paid by one or two partners instead of being shared
proportionally among them all.
Well into the twentieth century, American judges ignored the historical circumstances in which unlimited
liability became the custom and later the legal rule. Hence they repeatedly rejected contractual attempts by
partners to limit their liability. Only near midcentury did state legislatures grudgingly begin enacting "close
corporation" statutes for businesses that would be organized as partnerships if courts were willing to recognize
the contractual nature of limited liability. These quasi-corporations have nearly nothing in common with corpo-
rations financed by outside investors and run by professional managers.
Any firm, regardless of size, can be structured as a corporation, a partnership, a limited partnership, or even
one of the rarely used forms, a business trust or an unincorporated joint stock company. Despite textbook
claims to the contrary, partnerships are not necessarily small scale or short-lived; they need not cease to exist
when a general partner dies or withdraws. Features that are automatic or inherent in a corporation – continuity
of existence, hierarchy of authority, freely transferable shares – are optional for a partnership or any other or-
ganizational form. The only exceptions arise if government restricts or forbids freedom of contract (such as the
rule that forbids limited liability for general partners).
As noted, the distinctive feature of corporations is that investment and management are split into two func-
tions. Critics call this phenomenon a "separation of ownership from control". The most influential indictment of
this separation was presented in “The Modern Corporation and Private Property”, written in 1932 by Adolf A.
Berle, Jr., and Gardiner C. Means. Corporate officers, they claimed, had usurped authority, aided and abetted by
directors who should have been the shareholders' agents and protectors.
But Berle and Means' criticism over-looked how corporations were formed. The "Fortune 500" corpora-
tions were not born as giants. Initially, each was the creation of one or a few people who were the prime movers
and promoters of the business and almost always the principal source of its original capital. They were able to
"go public" – sell shares to outsiders to raise additional equity – only when they could persuade underwriters
and investors that they could put new money to work at a profit.
If these firms had initially been partnerships, then the general partners could have accepted outside inves-
tors as limited partners without running any risk of losing or diluting their control over decision making. (By
law, limited partners cannot participate in management or exercise any voice or vote, or else they forfeit their
claim to limited liability.) A far different situation applies to corporations. Shareholders receive voting rights to
elect the board of directors, and the directors, in turn, elect the officers. Conceivably, new shareholders could
play an active role in managing these corporations. But, in fact, this happens only rarely.
Страницы
- « первая
- ‹ предыдущая
- …
- 7
- 8
- 9
- 10
- 11
- …
- следующая ›
- последняя »
