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What is Limited Liability?

Limited liability is a legal structure formed to protect the owner of an entity from financial liability and legal liability. You can create a limited liability legal structure by starting a business entity, such as a limited liability company or limited partnership. Business contracts are also essential to strengthening limited liability.

This web page also defines limited liability.

Limited Liability for Business Entities

One of the ways you can achieve limited liability is by forming a business entity. You can create a business entity through your secretary of state's office, such as a limited liability company, limited liability partnership, or corporation. Upon proper formation, you legally separate your personal finances from your business ones.

Let’s take a closer look at how limited liability for business entities work by each type:

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Limited Liability Companies

A limited liability company, or LLC, is a popular business entity choice. It is a pass-through entity that provides similar benefits to forming a corporation without double taxation and stringent management requirements. In addition, they provide limitation of liability protection and tax benefits that can apply to an unlimited number of member-owners.

Limited Liability Partnerships

A limited liability partnership, or LLP, allows business partners to collaborate without holding personal liability for their partners’ actions. LLPs are relatively common among professional firms and typically have two or more principal partners. Each LLP operates differently depending on where, when, and how it was formed. Still, they all serve the same purpose of protecting each partner’s personal assets.

There are different types of partnerships that don’t provide limitations from liability.

For instance, consider general partner vs. limited partner. A general partner is liable for their partner’s actions. A limited partner (not to be confused with a limited liability partnership) invests money but does not make business decisions. Both general and limited partners are personally liable for the partnership’s assets and debts.

Limited Liability in Corporations

Corporations also enjoy the benefit of limited liability. One of the primary reasons for forming a corporation is to limit the liability of shareholders. Since a corporation is a distinct legal entity from its owners, it is liable for corporate assets and debts while only leaving shareholders on the hook for their original investment.

Forming an S Corporation or S Corp can limit owners’ liability. Unlike a C Corporation or C Corp, an S Corp functions as a pass-through entity. As a result, owners pay personal income taxes on revenues instead of paying corporate and personal income tax.

Limited Liability in Contracts

Another way to obtain limited liability is by creating it in your business contracts. You should understand the differences between limited liability vs. unlimited and what clauses to use for more significant protection. These elements can help you make better decisions and draft more sound agreements.

Below, we’ve described how each element influences limited liability in contracts:

Limited Liability vs. Unlimited Liability

The most significant difference between limited liability vs. unlimited liability is the scope and depth to which you are financially and legally responsible for the entity. Limited liability means that you’re only liable for debts incurred by the business up to the amount of your investment. Unlimited liability is when you face infinite financial and legal exposure to paying debts, including your personal finances, which could force someone into bankruptcy if a claim were successful.

Limitation of Liability Clauses

A limitation of liability clause defines one party’s liability if a breach of contract action arises. By limiting the potential damages, the clause can effectively eliminate a party’s right to certain types of damages as well. Wronged parties must also sufficiently prove that the breach was foreseeable at the time of contracting.

You should also consider adding a limitation of liability clause to your contracts, regardless of entity formation and type. Sole proprietors can even benefit on a contract-by-contract basis. Ultimately, you can limit your total exposure through careful contract negotiations, emphasizing limiting your liability.

Advantages of Limited Liability

Limited liability is a status many companies hold as a gold standard for conducting business. After all, who wouldn’t want to shield their personal assets from their professional debts? Not only does limited liability serve this purpose, but there are also taxation and succession planning advantages to consider as well.

Here is a closer look at three advantages associated with limited liability:

  1. No Personal Liability. One of the primary reasons business owners use limited liability is to avoid personal liability for business debts. This lets them conduct business without jeopardizing their personal property, cash, or other assets. As long as they fulfill their duties and responsibilities, creditors can only recover money owed to them only from the bank account and assets of this business in the event of insolvency.
  2. Taxation. Profits earned by LLCs are taxed at a lower rate. Owners are exempt from personal tax rates applicable to sole proprietors and general partnerships. Limited company directors can pay themselves a salary and dividend compensation taxed at a lower rate.
  3. Succession. Limited liability signifies a separation between the owner and the entity. The company will continue to exist after the owner’s death. This means that even if directors or members retire or become ill, the business will continue to exist and operate, making continuity and succession more straightforward.

Disadvantages of Limited Liability

Unfortunately, not everything in life and business is perfect, and this notion includes limited liability. The biggest challenge surrounding this concept is relatively new, which means case law is still developing. There are also some state-level issues, including availability and transferability, which can create unforeseen challenges.

Below, we’ve outlined these three disadvantages and the impact they could have on your company:

  1. Novelty. Limited liability is a relatively new concept with the first authorization of such a company in 1976. There is very little case law surrounding and supporting liability limitation, which may cause cases to go to a higher court for decision-making. As such, it could be more expensive to defend or litigate a case, depending upon the facts and circumstances.
  2. Availability. Some states do not permit limited liability for certain business formations or restrict them to a specific type. For example, professional businesses, financial institutions, and insurance companies cannot form LLCs in particular states. Instead, these businesses must select another entity type, such as a professional corporation or partnership.
  3. Interstate Transferability. Both LLCs and LLPs are difficult to transfer between states because they lack the ease of transfer and investment that a corporation structure provides. In addition, due to these differences in state laws, limited liability organizations and contracts may not be legally recognized in certain states. This necessitates the formation of a subsidiary to conduct business in those states.

There are benefits and drawbacks to consider when working with the concept of limited liability. These effects will influence how you operate and the profitability of your company. You may want to form a business entity, draft a contract, or both. Ensure that you make sound decisions by working with a business lawyer in your state for legal advice at every critical point.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.


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