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Practice in a Firm or by a Legal Person

Practice in a Firm or by a Legal Person

What legal forms are there? How are they set up?

What is a Legal Person?

A legal person is a legal entity with the ability to operate independently in legal matters as would a natural person.

In other words, a legal person has its own assets, its own rights and duties and the ability to operate independently in law.

Two Types of Legal Person

There are two types of legal person:

The perfect legal entity, in which the firm's equity is entirely distinct from the partners' private assets. This means that, in principle, no claim may be made on the partners' private assets.

The BV (Private Limited Company), the CV (Cooperative Company) and the NV (Public Limited Company) are companies that have perfect legal personality. The BV and the NV can be set up by one person.

The imperfect legal entity, in which only some of the firm's equity is distinct from the partners' private assets. This means that in subsidiary order the company creditors may (once the company's assets are inadequate) lay claim to the partners' private assets. In this case the partners are jointly and severally liable.

The VOF (General Partnership) and the CommV (Limited Partnership) are companies that have imperfect legal personality.

Note that a BV, an NV and a CV must be incorporated by authentic deed. When setting up a VOF or CommV, there is no need to approach a notary and it is sufficient to prepare a private deed.

The articles of association or contract for a company or association in which an architect is involved must always be submitted to the provincial council for approval.

More on this under Entry to the roll | Order of Architects.

(Art.5, Code of Professional Conduct and Practice)

Two Types of Architectural Firm

the ordinary architectural firm not itself entered to the roll, so that the firm is not authorised to practise the profession of architecture, but the architectural partner or architectural partners individually practice their profession on behalf of this firm;
the architectural legal entity entered to a roll of the Order of Architects, which is entitled to practise the profession of architect. As a consequence, it is required to pay a fee to the Order. It is also obliged to take out insurance.

The distinction between the two is of huge importance, especially in terms of the limitation of liability.

Practice of the Profession by an Architectural Legal Entity

By virtue of Article 2§2 of the Act of 20 February 1939, an architectural legal entity acts in the capacity of an architect and, therefore, practices itself the profession of architect (provided that the other conditions of this legal provision are satisfied).

The partner architects always act in the name and for the account of the legal entity. The architectural legal entity is entered to one of the rolls of the Order of Architects.

The choice of architectural legal entity is often driven by the need to limit the partners' liability. Choosing a legal entity with perfect legal personality involves separating the corporate assets of an architectural legal entity from the private assets of the partners/shareholders. In that case, the liability of the partners/shareholders is generally limited to their contribution to the company. Entities with perfect legal personality are the BV, the CV and the NV.

In the case of an architectural legal entity with this legal form it is (exclusively) the entity that can exercise the contractual rights arising from contracts with third parties (e.g. the client), although, in principle, there is no contractual or extracontractual liability for the architect personally, and the architect may limit the effect of his personal liability to the contribution that he has made to the entity.

In exchange for limited liability, the architectural legal entity must have insurance.

Practice of the Profession of Architect in an Architectural Firm not Entered to the Roll

An architect who practices his profession in this firm remains personally responsible for the tasks that only a registered architect may carry out.

From this it follows that the natural person who practices the profession of architect and de facto carries out the reserved architectural tasks as described in the architectural agreement is always personally bound to the client, both in the case where the architectural agreement was concluded with an architectural firm (which does not have legal personality) and the case where the architectural agreement was concluded with an architectural firm that operates as a legal entity with limited liability, such as a BV.

In the case of a partnership, only the architect may exercise the contractual rights arising from contracts with third parties (e.g. the client), and he remains personally liable, to the full extent of his personal assets, for any damage resulting from his liability. An architect may never, therefore, limit the effects of his personal liability to the contribution he has made to an entity that is not entered to the roll.

The architect it is therefore always liable, to the full extent of his personal assets, to compensate the damage suffered by the client or a third party as a result of the mistakes made by the architect in carrying out tasks set aside for an architect, even if he carries out these professional activities in a firm of this type.

On the grounds of contractual error, injured parties may therefore hold both the firm, based on the contract, and the acting architect, based on his legal mandate, accountable, and the coexistence of the respective commitments of the architect and the architectural firm may therefore lead to a “joint and several” judgement against the architect and the firm.