QUESTION

Ohio, individual contracting with a corporation, can the incorporator be named defendant in her individual capacity?

Asked on Nov 29th, 2012 on Business Law - Ohio
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2 ANSWERS

An incorporator can be liable for a debt of a corporation in formation if he or she enters into an agreement on behalf of the "corporation" prior to its formation.  At that point the incorporator is acting more like a sole proprietor and will have personal liability.  After the formation of the corporation the corporation can become liable for the debt either through a ratification (corporation assumes primarily liability, but incorporator is still liable) or a novation (the incorporator assigns the agreement to the corporation and the other party and corporation agree to release the incorporator and transfer the contract to the corporation.  The novation releases the incorporator). Once a corporation is "formed," meaning that the articles of incorporation have been filed with the Secretary of State and shares have been issued to shareholder(s), contracts can be made by the corporation in its own name.  As the corporation is a separate entity at that point, with some limited exceptions such as personal guaranties and reasons to pierce the corporate veil (very limited), neither the incorporator nor the corporation's shareholders, officers or directors will have personal liability, although if the shareholders will still be liable for the unpaid balance of their subscription amount to purchase their shares, if they have not yet paid it in full.  
Answered on Nov 30th, 2012 at 11:40 AM

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Business Transactions Attorney serving Los Angeles, CA at Doland & Fraade
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Once the corporation is properly formed, it is a separate entity, and the shareholders, officers, directors and original incorporator have no further personal liability unless they sign a personal guaranty.
Answered on Nov 30th, 2012 at 10:55 AM

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