The assignment of membership

• Applicant: Dr. Max Foerster
• Subject Area: Private Law
• Term: from 2018 to 2019
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 399850176

The post-doctoral thesis develops criteria to assign membership in associations to different legal entities. These criteria provide the basis to decide who is entitled to the rights attached to a membership, who has to bear the legal consequences of a membership or when a membership is transferred. For that purpose I initially demonstrate that the discussed question meanwhile is answered with the result of the assignment: Member is the entity which holds the legal position following the assignment to an association. However, this answer does not decide when a membership is assigned.As basic research in company law the analysis presents that membership is composed of a formal and a material element. Both elements are relevant in different conditions. That circumstance cannot be ignored in favour of a one-sided relevance of the formal element of membership. If done any regulation based upon membership in an association is without effect as protagonists do have free choice whether they wish to stick to that regulation or not. Hence is illustrated that regardless of company-law structuring and capital market evolution membership continuous to be a relevant category.Formal member is the entity that creates the impression to be a member. Here a formal member that barely creates that impression has to distinguished from a formal member that fulfils the formal however not the material element of an existing membership. As in the first case there is no relation to an existing membership such a formal member has to bear the legal consequences of a membership because of the created impression and not because of a membership.If the formal und the material element of an existing membership are split between legal entities, the formal and the material element of the membership is relevant. The same applies if the material element of the membership is fulfilled fractional.The material element of the membership fulfils who participates in the development of the association in question. That participation in the association justifies the rights in the association in terms of influence on the association as well as the legal consequences attached to a membership with respect to the respective legal status of the association. It is identified by the taking on of opportunities and risks with respect to the association in question on its own account as uncertainty concerning circumstances and developments relevant for benefit and/or value. That participation, the material element of the membership, may be split between several legal entities.

• DFG Programme: Publication Grants