Journal of the Charles University Law Faculty
Bohumil Havel
Author’s affiliation:
Faculty of Law, Charles University in Prague
A Gloss on the Autonomy of Will in the Formation of Legal Entities
Jurisprudence 6/2024 Section: Discussion Page: 27-30
Keywords: autonomy of will; legal person; corporation; foundation; numerus clausus principle; Gestaltungsfreiheit; purpose of the legal person
Abstract: The creation of a legal person is the result of human will and is usually derived from freedom of contract. Not only constitutive freedom (Gestaltungsfreiheit) but also organisational freedom is protected, but none of these freedoms are absolute. Because the legal person is a normative construct, the numerus clausus principle applies, what limits the otherwise protected autonomy of will. At the same time, this autonomy is limited not only by the mandatory normative arrangement of the particular legal person (the skeleton), but also by the nature of the legal person. Therefore, the expression of the founder's will must be interpreted differently in the creation of a corporation and differently in the creation of a foundation, particularly with respect to the purpose that these legal persons are intended to pursue.
