The Obligation of Loyalty and Non Competition of Administrators - Directors and Associates of Commercial Companies

• Author: Vasile Nemes - Gabriela Fierbinteanu
• Profession: Titulescu University, Romania - Titulescu University, Romania
• Pages: 48-59

The Obligation of Loyalty and Non-Competition of Administrators /

Directors and Associates of Commercial Companies

Associate professor Vasile NEMEŞ

1

Assistant lecturer Gabriela FIERBINŢEANU

2

Abstract

Being the manager of another's assets is no longer a simple contractual rela-

tionship under the current circumstances. Th e duty of diligence, honesty and loyalty of

the administrator towards the beneficiary receives a legal consecration in the new Civil

Code as a sign that the general rule evolves sometimes anticipating the n eed to change

the special rule. In this context, to talk about the loyalty of administrators considering the

provisions of the Law no. 31/1990 on societies and about the tripartite partnership-ad-

ministrator-associate-trading company from the perspective of diligence and honesty,

why not extending the discussion to so-called fiduciary duties is a welcome approach for

the authors, having in mind that there is sometimes a fierce demarcation line between

negligence and fraud and inherent business risk. Another aspect that this article proposes

for analysis is that of the noncompetitive obligation of associates from the perspective of

the Civil Code and Law no. 31/1990 on societies, given that, although specific elements

of competition are found in all areas and sectors of activity and between the different

subjects of the legal relationship, it is undoubted ly that the most fierce competition is to

be found in commercial activities, being exercised either by businesses operating on the

relevant market or by those who coordinate them .

Keywords: administrator, commercial companies, loyalty, diligence, non-

competition

JEL Classification: K15, K22

1. Preliminary specifications

The items specific to loyalty and competition are found in all areas and

sectors of activity, as well as between the different subjects of the legal relations.

However, there is no doubt that the fierce competition is encountered in the

sphere of commercial activities.

As regards the obligation of loyalty and non-competition, this study does

not aim to cover all situations where such obligations of the administrator or as-

sociate may be considered as breached, given the variety of interpretations and

practical situations deriving not only from the application of the corporate law

1

Vasile Nemeș - Nicolae Titulescu University, Romania, nemes@nemes-asociatii.ro

2

Gabriela Fierbinţeanu - Nicolae Titulescu University, Romania,gabriela.fierbinteanu@gmail.com