La liberté statutaire dans la société par action simplifiée en droit OHADA

Abstract

A haven for articles of association freedom, in that it constitutes a company tailored to the will of its shareholders, the Simplified Public Limited Company has henceforth imposed itself as a commercial entity whose introduction into the OHADA space has crystallized the contractual design of the commercial company. It allows the partners to freely insert in their articles of association anything that is not expressly prohibited and relating to the constitution, governance, and dissolution of the company. Nevertheless, this exuberant articles of association freedom, which contrasts sharply with the absence of personal liability of the shareholders for company debts, may be detrimental to the interests of the shareholders, the company, and the economy. Mandatory commercial companies’ rules and the general theory of commercial companies then timidly take it upon themselves to try to tame articles of association freedom and correct the defects of the Simplified Public Limited Company. All this heightens the feeling of distrust vis-à-vis articles of association freedom, which, in the absence of serious limitations, enslaves more than it releases.