L'approvazione del rendiconto bilancio annuale nelle società personali e la sua impugnazione

The regulation of the financial statements of the s.s. (artt. 2261 and 2262 c.c.), s.n.c. (art. 2302, referring to art. 2214 c.c.) and s.a.s. (artt. 2320, paragraph 3, and 2321 c.c.), in addition to an unambiguous terminology, is particularly deficient, starting with the issue of approval of the accounting document. First, it is unclear whether this approval consists in a declaration individually attributable to each partner or instead in an act collectively referable to the partners. It is also controversial if all the members — including the managers who have prepared the draft of this statement — can participate in this decision. It is also doubtful how the approval in question can be adopted: whether expressly or also for conclusive facts; at the same time, it is argumentative if, in the absence of specific clauses in the articles of company, the approval must be taken by majority or unanimously, and whether it is subject to the collegial method. In addition, in the silence of the law, it is unclear what are the rules of validity to be applied for the flaws in the accounting document and/or for the defects inherent in the formation of the approval decision: in particular, it is discussed whether in this case should apply the general rules of contracts (art. 1418 c.c. ss.) or the special rules provided for collectively organized entities and, among them, for companies with share capital (art. 2377 c.c. ss., for the s.p.a., and 2479-ter c.c., for the s.r.l.).