A discussion that started on signal…
The summary of the discussion:
We are going to sign the contract with the architects on Monday normally, on which the name of the société simple and the 5 members of the board are mentionned.
The question we ask ourselves: do we need to sign this contract with all 5 board members?
Some thoughts/questions brought up in the discussion :
Is something mentioned in the statutes concerning the number of signatures we need to sign contracts
We have something mentionned about qualified majority in our statutes => so 3 signatures (out of 5 ) should be enough, or is this qualified majority only linked to decision taking and not to signing contracts?
a société simple has no ‘personalité juridique’, meaning it cannot conclude contracts in its name with third parties, so can the société simple and its board representing the Sosim uberhaupt sign contracts?
So I think - but i invite others to share their opinion- that if nothing is mentioned in the statutes (which i think it isn’t), we should maybe all have to sign the contract with the architects. But reef-finance, to check with the notary?
Found this as well, which is valid for SPRL, but my feeling the 'powers of the members of the board (=gérants) are probably the same as for a Société simple 2) La représentation externe de la société
La représentation externe concerne les relations qu’entretiennent les tiers avec la société. Cette dernière est représentée par les gérants qui peuvent l’engager par exemple en concluant un contrat avec un tiers. Fréquemment, les statuts prévoient que la société est représentée par un ou plusieurs gérants spécialement désignés ou par plusieurs gérants agissant collégialement. Dans la pratique, on rencontre souvent une clause de double signature en vertu de laquelle deux gérants doivent signer un document pour qu’il engage la société. Ces clauses statutaires sont valables et opposables aux tiers pour autant qu’elles ne concernent que les pouvoirs de représentation (non la gestion interne) et qu’elles ont été l’objet d’une publication adéquate 18.
So i have the impression, that by default all contracts can be signed by one ‘gérant’ unless specified differently in the Statutes (like they mention above, that it is common practice to oblige a double signature)
I am not getting any wiser, so i remain with the proposition to ask the notary
Your impression is almost certainly correct, and consistent with company law in other countries. What makes a director a director is power of representation, wielded individually.
That said, statutes (or just policy) might restrict that power, by requiring double signature. I would probably do this too.
As far as I understand things, a société simple is the only possible legal vehicle for apartment buildings that are not build under the “Loi Breyne”, exactly because entrepreneurs etc need a counterpart. That implies signing contracts, even though I admit it’s a bit weird to read on these web pages that a société simple can’t sign contracts.
The power to sign contracts is in the second bullet point of Article 6.11 of the société simple. This comes from the notary’s template, so I would personally not bother him to confirm this.
An additional point is that it is legally difficult to sign such a contract with the asbl, because we don’t have the funds to pay all these bills. Signing such a contract would imply a “faute grave” by the Board numbers.
In terms of governance the key principles are these:
We agreed to stick with our informal governance processes, so whatever is in the statutes should not be of too much relevance.
The signature of the contract itself was approved in a plenary meeting around June. The decision was to delegate the detailed handling of it to a helping circle consisting of people from Team Building and Team Finance. If you would want to translate the informal goverance into the formal goverance of the statutes, it would be “the GA has decided to sign the contract, so the Board is executing that decision”.
This should not stop Board members from taking their responsibility and reading the contract in detail of course.
We don’t have any specific clauses on the number of signatures. I believe we discussed it at some point, and we concluded that we wanted to prioritise trust and agility over protecting ourselves against the unlikely case that somebody on the Board would maliciously sign a contract without the knowledge of the others. If this is something that is no longer “good enough for now, safe enough to try” please feel free to propose adding it to the list of things to be reviewed.
In this case, for me, the reassurance that several Board members were on that helping circle and are giving their informal ok to sign the contract is much more important than having a formal double signature.
So just checking: @els@alberto and @RichardB do you confirm that you have read the contract and that you are in principle ok to sign it?
I read the contract, it seems OK. Except article 5. It does not seem fair that we have none of the intellectual property and rights of reproduction of a piece of work that we paid for. Was this discussed?
And I have a question about the coordinateur-projet, coordinateur-réalisation and coordinateur de sécurité. Are the first two members of our group, and the third one a professional?
What makes me think so is that the project phase has started, so, as per article 3, a coordinateur-projet has been designated. Who is he or she?
This is true. However, signing a contract for 500K is not exactly gestion journalière (6.3). In the absence of a decision to sign it (with at least 3 votes in favour), I think it is not a bad idea that we all sign.
Indeed. The idea that the board is accountable for decisions made somewhere else in the informal governance is inelegant to me. Instead of bringing the board into the informal governance (we sign whatever helping circles have decided), we bring the informal governance into the board. This is done by the simple expedient of designating the board as a permanent helping circle on delivering the building. This helping circle/board is constituted of the coordinator, plus members of @reef-building and @reef-finance .
So, going forward and until the building is finished, the group of The Reef is organized into two legal entities:
Coral Reef, tasked with delivering the building.
The Reef ASBL, tasked with recruitment, onboarding, inclusion, facilitation, community life, external relationships, conflict management, and services (eg. IT tools).
Team Building is henceforth 100% working on the side of Coral Reef. Team Finance is 95% working on the side of Coral Reef, though The Reef ASBL still needs to manage some resources, have its own accounting, file a tax return etc. These two teams cooperate very tightly in the board of Coral Reef.
I see the point, and at the same time, these decisions are made in a plenary meeting, by consent, and all Board members are part of that decision making.
This is something we could do, but I’d like to decide that based on a proposal in a plenary meeting. What doesn’t work for me is selecting a Board based on the premisse that the decision-making processes of our Goverance Document will prevail (like we did), and then do something else only a couple of days later (like you are proposing).
So my proposal would be that we send this question to @reef-governance, and that they come forward with a proposal on this in the next coming months, when we will also get a better feel for how we can align informal and formal governance in a way that doesn’t make matters even more complicated.
In the meanwhile we stick with our informal governance processes: all big decisions need to be consented to in the plenary meeting / GA (e.g. the next big item will be the contract with the engineering companies), and then the Board members will execute that decision.
The board executing on our informal governance is specifically foreseen in our statutes: Cercles : désigne les Instances déléguées par thèmes et par le Collège de gestion, en vue d’assurer le fonctionnement participatif de la Société et au-delà, de l’Habitat groupé
Here you would need to add as a third entity the coproprieté (represented by the syndic) which comes to life when we divide the property into lots, so before the construction start and possibly even before building permission. This entity will be responsible for all common areas (garden, salle polyvalent etc.).
There is a misunderstanding here. The plenary meeting is the informal governance equivalent of the Coral Reef’s GA. The equivalent of the board is the the helping circle.
The two make different decisions. The plenary/GA makes strategic decisions (“policy”) such as “we are going to group all common spaces in a single building”. The helping circle/board makes operational decisions, such as “the offers we received from the surveyors are too expensive, we will solicit more offers from other companies in Brussels”.
So, the decisions made by the plenary by consent are great, and the board will implement them, but it does not solve my problem. An example of the type of problem I foresee is with people making a decision to buy something not being in the same room with the people who must make sure that, at the time of paying for that something, the necessary funds will be in the account. A legally accountable board/helping circle with both sides of this equation seems to me a great way to encourage us to coordinate tightly.
We did ask a question on this , i don’t know if this fully answers yours…: this was the answer: if things would go bad, we would have a right to sell the plans with the site to another party, if we have fully paid for the plans.
we asked the question: The answer
=> both these security coordinator roles (rôle during the study phase and the rôle during the construction phase) will be taken up by one and the same person.
The architects will look for somebody and propose it to us.
This cost is foreseen in the price/m² from the FS.
There might be a part to pay this year.
Adding this now: if i remember well, there are not 3 roles, but two roles: coordinateur-projet and coordinateur réalisation, which are both coordinateur de sécurité roles. So talking about coordinatuer de sécurité means you talk about the two others. Both roles would be a professional.
I am not sure if the project phase has started, can be asked tomorrow…
fyi: this is the contract with questions we asked and answers: Login – Nextcloud
What is the conclusion for the signing of the contract with the architects for tomorrow?
we sign with the board members being at the presentation (meaning, Lie, Sophie and myself)
OR
we sign with all board members, it’s in the end not such a big deal to have this realised. Alberto can come at 17:30, and i can pass at Richard’s somewhere in the week to have it signed by him and put it in the architects letter box (which is close to where i work)
Do you want an adaptation of the contract?
As indicated in this post, i contacted the architects on friday saying we had no remarks and asking for printing it for tonights meeting so we can sign.
Je suis prêt moi aussi à signer le contrat au nom de Coral Reef.
Seul l’article 5 est un peu… contraignant. Évidemment, nous n’avons aucun intérêt à participer au concours d’architecture, ni à revendre l’idée à des autres clients. Par contre, nous sommes intéressés à publier les dessins sur nôtre site internet avec le but de trouver des nouveaux membres, et à partager les solutions de The Reef avec les habitats partagés du future (ce que, tous l’espérons, se traduira en plus de clients pour vous).
Seriez-vous disponible à modifier l’article 5 pour nous donner un peu plus d’éspace?