Explanation of Article 539
The first paragraph addresses the standard of due diligence required of those who manage or act on behalf of the company, distinguishing between two scenarios.
The first scenario: If the person managing the company or acting on its behalf does not receive a salary or a share of the profit, they are required in this case to exercise the same level of care they would in their personal affairs, whether this care is higher or lower than that of an ordinary person.
The second scenario: If the person managing the company or acting on its behalf receives a salary or a share of the profit, they are required in this case to exercise the same level of care they would in their personal affairs, provided it is not less than that of an ordinary person; meaning they must exercise the higher of the two levels of care, either their personal care or that of an ordinary person.
For example, if the ordinary level of care involves reviewing accounts weekly, and the person managing the company's funds reviews daily in their personal affairs, they must conduct daily reviews in both scenarios. If their personal review is monthly, they must conduct monthly reviews in the first scenario and weekly reviews in the second scenario.
Thus, it becomes clear that the care required from a partner in safeguarding the company's interests exceeds the care required from an ordinary agent in managing their client's affairs.
The second paragraph establishes three matters considered as part of the required care that must be observed by those managing or acting on behalf of the company. Failure to do so means they have not adhered to the legally prescribed care in safeguarding its interests, resulting in negligence and liability towards the partners. These matters are:
The first matter: To refrain from any action that harms the company, such as selling or leasing some of the company's assets for less than the usual price or rent.
The second matter: To refrain from any action that exceeds the powers granted to them, such as delegating their duties to others without the partners' approval.
The third matter: To refrain from any action that contradicts the purpose for which the company was established, such as selling some of the company's real estate not intended for sale, gifting it, or lending it.
Among the obligations of those managing the company under the duty of care is to provide accounts of its activities if the nature of the company requires it, similar to an agent in this regard.
Related To
Article 539
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The person in charge of the management of the company or the disposition of its assets on behalf of the partners shall exercise the level of care he would in the conduct of his own business, unless he receives a fee or a share of the profit for his work; in such case, the care he exercises may not be less than that of a reasonable person.
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The person in charge of the management of the company or the disposition of its assets on behalf of the partners may not act in a manner that causes harm to the company or violates the powers vested in him or the purpose for which the company was established.