How does the consortium work?
As someone who has been involved in small property deals for many years, I was approached by an acquaintance to take part in a truly original project in collaboration with other entrepreneurs. To carry out this joint venture, my contacts are talking about joining forces in the form of a consortium. What does this mean in legal terms, and what consequences might it have for the payment of my work?
L, Vésenaz
A consortium is a temporary association of several companies, often formed to carry out a specific project such as the construction of a building.
Each member of the consortium contributes his or her expertise and resources to the consortium's success, creating a beneficial synergy to achieve common goals. Under Swiss law, a construction consortium is generally referred to as a société simple, i.e. an entity that does not have a separate legal personality, but is based on an agreement between its members, in accordance with articles 530 et seq. of the Swiss Code of Obligations.
In the absence of a specific agreement, the general rules of a simple partnership will apply, in particular to the internal and external relationships of its members. For example, when a consortium generates receivables, these are held jointly by all the members and will have to be divided between them. A debt owed to the consortium by a customer as a result of your work or activity will thus benefit all the members of the consortium.
To collect these debts, the members of the consortium must in principle act together. This is known as the necessary material consortium. In concrete terms, if one of the participants wishes to take legal action to recover a debt, it must do so in agreement and coordination with the others, otherwise its initiative will fall through.
In short, the claims held by the consortium cannot be asserted individually by one of its members without the participation of the others, except in special cases involving an assignment of claim or an emergency measure in the interests of all.It is worth pointing out that the operation of debts generated by a consortium also follows specific rules: its members are jointly and severally liable for the debts contracted.
This means that if the consortium owes money to a third party, that creditor can demand repayment of the entire debt from any member of the consortium. In a way, this is the opposite rule to that governing the collection of a debt...
A consortium can offer many advantages, such as the pooling of resources and skills. However, to maximise your project's chances of success while minimising its risks, you would be well advised to draw up a detailed contract with your partners, clearly defining the operating procedures and the roles and responsibilities of each party.
