QUESTION

A contract was given to me in which the company has not yet been legally created yet, but has it's name on the document.

Asked on Apr 17th, 2013 on Contracts - New Jersey
More details to this question:
I want to know, should the document have the name of the principals on it, instead of the name, so that they individual are liable. It doesn't seem safe being that the company name is not incorporated, DBA or LLC and for me to sign it. I feel the names of the individuals should be listed on the document until they have incorporated the name.
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1 ANSWER

Appellate Practice Attorney serving New York, NY
As a general rule, you are better off having individuals personally liable to you, rather than corporations, and certainly so where the individual is one of the owners of a close corporation, because even if the individual has no money to pay and the corporation does, you can at least (after obtaining a judgment) sell that person's interest in the corporation to satisfy his debt.  The converse is not true; where a corporation is liable but lacks assets, you generally can't go after the shareholders personally. If a person signs a contract under a fictitious name, for example John Doe signs for ABC Company, which doesn't exist or is not a separate legal entity (corporations. llc's, etc. are separate legal entities, sole proprietorships are not), that person is personally liable on the contract.  The rules may differ somewhat where it is contemplated that the entity being signed for will shortly be created, but the worst that would happen is that the entity alone will be liable, rather than the individual, which is exactly what would happen if the entity did exist when the contract was signed on its behalf.  In other words, when dealing with a closely held corporation (one which is not publicly traded or widely held) you would generally be safer if the individuals signed in their personal capacity than signing on behalf of an entity which has not yet been formed, but having the individuals signing on behalf of an entity which has not yet been formed is generally safer than them signing on behalf of an existing corporation, because if the entity has not yet been formed, you might be able to impose personal liability on the signers, and that is what you want.
Answered on Apr 17th, 2013 at 5:02 PM

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