This paper analyses succession in family firms from a contractual perspective. A firm is regarded as a nexus of contractual relations with owners, employees, suppliers of goods and services and customers. These contractual parties are in differing degrees tied to the firm through asset specificities. Succession can affect the value of such assets. In this sense they become stakeholders with vested interests in the succession process. The theoretical discussion of affected stakeholdersis backed up by a survey study of 143 Swedish family-owned businesses that have been subject to succession. The results show that the opinions of close shareholders such as family members and incumbent mangers as well as those of other stakeholders such as suppliers and customers are important.
At the start of a new business both team and risk aspects have to be considered in the choice of business form. The partnership form offers advantages in terms of team considerations while the corporate form provides limited liability which provides a way to handle the risk problems associated with owning a firm. The advantage of having a well synchronized team is important for many new firms and especially for cases where family relations are considered important. Seen from that angle the partnership form should be opted for. But risk is high up in the mind of founders. Events might unfold in an unexpected way and in the process the economy and well being of the family is at stake. The corporate form with limited liability is in this sense a very attractive choice that is commonly chosen. But with the corporate form comes transferability of ownership of shares without consent of other owners. The shareholder team might therefore change in an unexpected and unwelcome way. Therefore it is important to consider different types of transfer restrictions when a new corporate form of business is started. This aspect has not been much considered in practice and in the entrepreneurship literature. An accountant or a lawyer often has to remind an entrepreneur of the importance of stability in ownership positions.
Purpose – The purpose of this paper is to explore the case of divorce in family business from a legal perspective and highlight the problems of applying family law in the family business context.
Design/methodology/approach – The authors rely on legal analysis and interviews with estate distribution executors to discuss problems with the legal rules and how they are practiced.
Findings – The findings show that the law is ill fitted to the situation where there is a family business included in the division of marital property. In divorce, family law dictates the division of marital property and the family business is reduced to an asset to be divided like any other. Critical issues are identified and elaborated.
Research limitations/implications – Divorce and other disruptions to the family system should be considered in family business consultancy among other threats to the business. The legal perspective on divorce in the family business offered here primarily concerns ownership issues. The impact of divorce on management is equally in need of exploration, which is the suggestion for further studies.
Practical implications – The paper illuminates in which ways the business is hampered from divorcing owners and discuss critical issues with applying family law in a family business context. Social implications – Policymakers should establish rules in which shares in an unlisted business are by default assigned to separate property until something else is contracted.
Originality/value – New light is shed on the practical problems of interpreting family law in a family business context advancing the understanding of family aspects in family business management.
Small- and medium-sized enterprises (SME's), of which most are family owned businesses (FOB's), play a crucial role in upholding many of the topics at the heart of the International Conference on Applied Business Research. They are especially noteworthy in relation to economic development, growth and innovation, sustainable development and rural development. The practice of FOBs is quite different from large companies with scattered ownership (Nordqvist, Hall & Melin, 2009). The practice turn in social science, well embraced in management studies (Vaara & Whittington, 2012), is relevant to develop new knowledge in the field of business law. We study the practice of shareholder protection and aim to narrow the gap between theory and practice regarding business law and FOBs. An entrepreneurially friendly and inspiring environment presupposes that business owners can protect their ownership positions against unwanted acquisitions of shares, as well as that they are not unwillingly locked-in in a position as minority owners. In addition, this requires legal rules that are not unnecessarily costly, time and energy consuming to comply with, administer and uphold. Legislators should, if possible, thus provide a set of rules that facilitates for owners to effectively avoid both unwanted acquisitions of shares and locked-in positions. We conclude that default rules in the form of e. g. a right of first refusal should be included in the articles, since the lack of an open market place anyhow makes it highly difficult to sell the shares. Furthermore, we find it important to allow also clauses that enhance the possibility to avoid locked-in positions in the articles whereas most national legislations today permit only clauses that contribute to the protection of ownership positions. Key words: family business development, small-medium sized enterprises (SME), business law, share transfer restrictions, minority shareholders, articles of association, shareholder's agreement, practical implications.
Restrictions on the transfer of shares, in the articles of association and shareholders' agreement are of crucial importance for SMEs. Associates running a business together are dependent on a fragile balance in ownership positions, as well as the expertise of each shareholder and manager of the business. We criticize the EU approach to transfer restrictions, as presented in the Commission's proposal for a "Statute for a European private company" (2008). Not all of the suggested restrictions are suitable under all circumstances in the articles of association. One example is a prohibitive clause, which must be limited both in time and to transfers (not transmission) of shares. Further, other options, such as a mandatory buy-sell agreement, are not considered. Such a clause can be of the utmost importance in the case of some transmissions, e.g. upon intestate succession.
Sweden abandoned the gift and inheritance tax in late 2004. One reason was that the government wished to enhance transfer of ownership of shares in family-owned businesses from the older to the younger generation and within the family. Anticipated outcomes of amendments in tax law are, however, not always fulfilled. This paper reports on a survey study of 143 Swedish small to medium-sized family businesses. The study is focused on companies and families that have carried out an intergenerational succession (some partly) during the lifetime of the older generation (127). Only in a few instances was the transfer of shares made in another way, i.e. six intestate inheritances and ten sales to an external person. According to the survey results abandoning the gift and inheritance tax is no quick .x. A succession within the family has still to be prepared and planned. Further, a transfer of the shares, for example to a daughter during the life time of the incumbent cannot always be made through a gift. The older generation may still require financial compensation in order to uphold their standard of living or compensate siblings who do not receive shares. A sale to a child at less than market value is still partly capital gains taxed. Even though having no gift and inheritance tax can be beneficial it nonetheless cannot produce miracles.
We conclude that more efforts should be made concerning taxation of intergenerational transfer of family-owned businesses, in order to smooth the process, which hopefully will also be recognized by the EU Commission in its recommendations.
In many small and medium sized family firms of corporate form there is a desire to protect ownership structure through restrictions on transferability of shares. At first sight this can appear strange as one often mentioned advantage of the corporate form is that it provides for high transferability of shares whereby a large amount of equity easily can be accumulated. But looking around in the real world, most family firms are not listed and have an interest in the control of changes in ownership structure through clauses that restrict transferability of shares. In this paper this interest of control of ownership is taken for granted. The focus is instead on providing a contractual analysis of the pros and cons of different clauses that restrict transferability. What do the spectra of restricting clauses look like? In what transferability situation can it be more efficient to use a certain clause? Does it matter if a person controlling the use of the firm’s assets has a majority ownership and/or is the manager of the firm? We further focus on the impact on management of post-sale purchase clauses, which are common only in the Nordic countries and thereby provide an indigenous perspective. How do succession matters enter into the picture? These are the type of questions that this paper aims to provide answers to. In the description of clauses the Swedish situation is the base case with a short discussion on how Sweden differs in this respect or is similar to the rest of the world.
Ägandets villkor är grundläggande för svenska företag och den ekonomiska utvecklingen i stort. Möjligheterna till smidiga ägarskiften i företag har under de senaste åren påverkats av ett flertal faktorer. Ett exempel är avskaffandet av arvs- och gåvoskatten i slutet av 2004.
Denna bok behandlar ägarskiften ur olika aspekter, främst förhållanden som underlättar eller försvårar generationsskiften av familjeägda aktiebolag inom familjen, dvs. när nästa generation tar över. Resultaten stöds av en empiriskundersökning.
Svenskt Näringsliv är en viktig aktör i samhällsdiskussionen och arrangerade bl.a. en internationell ägarskifteskonferens 2010. Samarbetet mellan Internationella Handelshögskolan och Svenskt Näringsliv har på senare år ökat vilket bl.a. lagt grunden till denna bok.
The key to a successful transfer, of ownership of family-owned and headed businesses, to the younger generation is in most cases the incumbent. However, there are close and non-close stakeholders who wish to protect their interests. The main purpose of this article is to map the stakeholders in two models, as well as to analyze their interests and possible legal tools when intervening in an ownership succession process. Our reasoning is supported by descriptive data from a recent empirical study. Incumbents are presumed to be aware of the conflicting interests and their potential impacts. It is no wonder, that they hesitate to take the necessary initiative in a succession process! We analyze how consultants can provide a helping hand.
This article contributes to the family business succession literature by (1) addressing ownership succession rather than management succession, (2) recommending a combination of legal and psychological perspectives on ownership to advance our understanding and (3) suggesting a preparatory approach to succession. Measuring the success of management succession has mainly been undertaken by assessing outcomes. Learning retrospectively why a succession was (un)successful may deepen our understanding of the process, but it is not particularly helpful to the business in question. We propose an alternative method for ownership succession: a preparatory approach that establishes requirements to fulfill before the succession takes place. These requirements are presented in a model that considers both the legal/financial and the psychological aspects of ownership and are formulated to improve intergenerational ownership succession and the post-succession prosperity of the firm.
The principle of ‘the best interests of the child’ (art. 3 of the Convention on the Rights of the Child) is sometimes put forward as being the leading guide, i.e. it will in the long run – via, e.g. court cases and legal writing – give accurate and detailed information on the scope of children’s rights and the responsibilities of, e.g., parents. We claim that this principle does not provide us with the necessary analytical tools to enhance the legal rights of children. To this end it is more efficient to accept the explanatory power and apply the elements of the Interest theory, i.e. the chain of children’s interests and rights, obligations of e.g. parents and sanctions against failures. In this context we also illustrate that rights can have different strengths by briefly examining the role of social authorities in relation to the rights of children.