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MAURICIO TRONCOSO REIGADA Forced Selling of Limited Liability Company Shares and Statutory Restrictions on TransfersForced Selling of Limited Liability Company Shares and Statutory Restrictions on Transfers?br 1. In many European countries, one of the most complex and widely discussed issues addressed by legal systems ?/span>around the forced selling of limited liability and public limited company shares is the consequences, in the event, of the possible existence of statutory restrictions on transfers[1]. And as a general rule this solution would call for the applicability of restrictive clauses to cases of forced selling, regardless of whether such statutory provisions are viewed in the context of order or of alienation.?br

2. And this is what should be stressed here: such clauses should never be challenged on the grounds that they may constitute creditor fraud, in light of the absence, by definition, of one of the essential circumstances that determines fraudulent conduct: the prior existence of creditors[4]. The valuation related inconsistencies introduced in the system by their approach must not be overlooked. ?/font>In this regard, and with respect to cases in which investment in shares subject to restrictive clauses is a question of order, the advocates of inapplicability plainly appear to ignore two fundamental principles. First, the principle enshrined in the old Latin axioms nemo dat qui non habet and nemo plus juris transferre potest quam ipse habet[5], which in our specific case infers, simply, that partners cannot (voluntarily) assign ?and therefore cannot forcibly sell ?rights to which they are not entitled (hence, their shares are subject to certain restrictive clauses; they are neither holders of shares that are restrictionree, nor of shares subject only to other restrictions); therefore, to flout the rights scheme is tantamount to absurdly and magically (in other words, rendering the execution process thaumaturgic) enabling subjects to forcibly sell something that they cannot voluntarily transfer because it does not form a part of their equity. In such cases, they would be null and void for want of any (objective) cause[7].?br

3. The two conditions that define fraud for these intents and purposes are (1) the presence of a creditor before the alleged act is committed (a condition which is met by definition, insofar as this discussion assumes the existence of alienation) and (2) a decrease in the debtor equity. Now then, disregarding other, perhaps more controversial circumstances (such as cases where the shares subject to restrictions may be thought not to be worth less than those that are restriction free, from which it may be inferred that the introduction of provisions of this nature entail no such decrease[9]), there are instances where no such decrease obviously ever occurs: when debtors acquire shares subject to restrictive clauses cost free; in these cases the shares form a part of their equity at the respective value taking account of the restrictive clauses to which it is subject. Hence, even where the existence of such restrictions lowers the value of the shares, debtors?equity does not decline, inasmuch as the shares are received in exchange for no consideration whatsoever. Therefore in such cases creditors ?of beneficiaries of cost free acts, naturally ?must never be able to object to or demand anything (specifically, for the present discussion, demand the non application of restrictions on forced selling), for no fraud is committed.?/font>But the reproaches do not end with this doctrinal objection; in addition thereto, there is the fact ?which must not be taken lightly that the theory that such clauses cannot be used against creditors also introduces valuation related inconsistencies in the system with respect to these cases. Given the absence of fraud, this is not the criterion that prevails in other instances where goods subject to transferability restrictions, effective erga omnes, are added to the debtor equity during the life of the credit. One example would be the receipt by a debtor of a donation consisting in real property subject to a prohibition on alienation; the solution proposed here would clearly generate inequality[10].?/font>What perhaps will prove most surprising to many, however, is that the inapplicability of restrictive clauses should not be admitted even where their inclusion unquestionably constitutes fraud. The reason for rejecting the criterion of inapplicability of such restrictions, even where forced alienation is claimed by previously existing creditors and the debtor assets are shown to have declined, is the absence of any justification for failing to use general remedies against creditor fraud, specifically actio pauliana[11], and resorting instead to other instruments[12]. All these objections lead to an aberrant discrimination with respect to other cases of fraud, introducing yet another valuation related inconsistency into the system. For that reason alone and on the grounds of elementary prudence, fraud committed under cover of restrictive clauses should be the last fraudulent act to be persecuted.?br


Professor of Commercial Law at the Universidad Autonoma, Madrid, Spain; PhD University of Bologna, Italy; Alexander von Humboldt Stiftung Scholar. This study was conducted under research project headed by Prof. SEJ2005 07030/JURI).

[1] This debate has arisen in several European countries. y clsulas restrictivas, ?/span>Civitas, Madrid, 2004.

[2] See as representative, in German doctrine, ULMER, E., Festschrift Schmidt Rimpler, pp. 264 265; SCHOLZ, F., Kommentar4?5 Rdn. 84 85, pp. 228 229; GOTTSCHLING, H., GmbH Rdsch., 1953, p. 21; UHLENBRUCK, D., DB, 1967, pp. 1928 1929; HUECK, A., in BAUMBACH, A. HUECK, A., Aktiengesetz13, ?8, Rdn. 7, p. 200; BAUMBACH, A., HUECK, A., GmbH Gesetz13, ?5 6B p. 87; MOHRBUTTER, J. MOHRBUTTER, H., Handbuch2, p. 315; KOSSMANN, H., BB, 1985, p. 1364; ULMER, P., ZHR, 1985, p. 39; WINTER, H., Scholz Komm.9, ?5 Rdn. 179, pp. 868 869, Rdn. 185, p. 873. In Italian doctrine, MILILLO, D., Foro it., 1952, I, cc. 1299 1300; ANGELONI, V., Riv. dir. comm., 1955, I, pp. 101 et sequentes.; BUCOLO, F., Pignoramento, pp. 144 145; RIVOLTA, G. C., Societ?/em>, pp. 239 241; BONSIGNORI, A., Espropiazione, pp. 58 63 (and subsequent references); GORLA, G., Societ?/em>, p. 105; CANTILLO, M. CATURANI, G., Sequestro, pp. 85 86; MILONE, L. LOPS, P., Dir. fallimentare, 1985, I, pp. 473 474; COTTINO, G., Societ?/em>3, p. 698. In Spanish doctrine, SCHEZ GONZEZ, J. C., Sociedad de responsabilidad limitada, I, pp. 736 738, p. 753; FERNDEZ Del POZO, L., Sociedades Limitadas, p. 150; CARL SCHEZ, L., Sociedades de Responsabilidad Limitada, p. 297; see also, more recently, PERDICES, A., Clsulas, pp. 51, 250 and 251 and 290 291.

[3] See as representative, in German doctrine, MZBERG, W., Stein/Jonas Zivilprozerdnung21, ?22 Rdn. 2, p. 908; LUTTER, M., Kner Kommentar2, ?8 Rdn. 22, p. 838; FISCHER, R., Aktiengesetz Grosskommentar, ?1, Anm. 20, p. 386; BARZ, H., Aktiengesetz Grosskommentar3, ?8 Anm. 14, p. 522; LUTHER, M., Aktiengesellschaft, p. 67; HEFERMEHL, W. BUNGEROTH, E., Aktiengesetz Kommentar, ?8 Anm. 152, p. 387; BORK, R., Festschrift Henckel, p. 29; WIESNER, G., Aktiengesellschaft2, ?4 Rdn. 22 p. 97; EHLKE, M., DB, 1995, p. 566; OBERMLER, W., NJW, 1962, pp. 852 853; DEMPEWOLF, G., NJW, 1963, pp. 1343 1344; BRUNS, R. PETERS, E., Zwangsvollstreckungsrecht3, p. 669, p. 389; ASCARELLI, T., BBTC, 1953, I, p. 310; NEGRO, F., Indisponibilit?/em>, pp. 122 131 and 140; GATTI, S. , Riv. dir. comm., 1973, II, pp. 43 45; FR? G., Societ?/em>5, p. 256; and by the Corte di Cassazione in its sentence of 1 IV 1895, see Foro Italiano, 1895, cc. 330, p. 429 and III, n. 329, p. 727 and 739; DE SOL?CAZARES, F., Tratado, p. 148, ID., ADC, 1951, p. 50); MADRIDEJOS SARASOLA, J., RDPriv., 1955, pp. 273 274; BOL ALFONSO, J. [et al.], Sociedad de responsabilidad limitada, pp. 269 270, GIR, J. Sociedades Animas, p. 234; FERNDEZ BALLESTEROS, M. A., Ejecuci forzosa, p. 301, ID., Comentarios, p. 2873.

[4] Proof that fraud can only be committed, initially, against pre existing creditors rests on two facts:On the one hand, the principle, broadly established in continental law, that as a rule a debtor liability extends to his entire property; in German law, for instance, Unbeschrkte Vermenshaftung (see as representative, KRAMER, E., Mchener Kommentar%, Rdn. 47 p. 26); in Italian law the principle is known as principio di universalit?della responsabilit?patrimoniale (see, as representative, TROIANO, S., Comentario, p. 3070); and in Spanish law as principio de la responsabilidad patrimonial universal (see as representative, DZ PICAZO, E., Fundamentos4, pp. 123 124); this liability refers to present and future property (explicitly, for instance, in?art. 2740 of the Italian Civil Code [A debtor is liable with all his present and future property for the performance of his obligations] or art. 1911 of the Spanish Civil Code), but not ast?property (owned by the debtor at one time but no longer in his possession when the obligation was contracted) which, obviously, is excluded therefrom (see, for instance, in Spanish doctrine DE CASTRO, F., RDPriv., 1932, p. 481; ID., Compendio, pp. 245 and esp. 260 261; PRIETO COBOS, V., Acciones civiles, pp. 819 and 820 821; CAST TOBES, J., Derecho Civil, t. III113, p. 295; ROCA SASTRE, R. ROCA SASTREMUNCUNILL, L., Derecho Hipotecario8, Tomo II, p. 658.

[5] V. Cach Cadenas, M. J., Embargo, p. 301; Id., Comentarios, p. 2873.

[6] In this regard, inasmuch as doctrine advocates, in respect of a person incurring an obligation, that he debtor has absolutely no duty, vis ?vis the creditor, to maintain his property and even less to administer it in the creditor interest?(see, for instance, in Spanish doctrine, the reputed opinion of DE CASTRO, F., RDPriv., 1932, p. 221), this same premise should be upheld a fortiori, all the more, with respect to those who transfer their property prior to incurring any obligation.

[7] In other words, these clauses should be treated in the same way, for instance, as statutory clauses that envisage the amortization of shares cost free or for a sum lower than the real value, only where the cause for amortization is a seizure. For the nullity of this type of clauses, see, for instance, FISCHER, R., GmbH Rdsch., 1961, p. 25; ROWEDDER, H., GmbHG, ?5 Rdn. 84, p. 377; ROWEDDER, H.ERGMANN, A., Rowedder/Schmidt Leithoff GmbHG, ?5 Rdn. 147, pp. 565 566; MOHRBUTTER,J.OHRBUTTER, H., Handbuch, p. 316; KLAUSS, H.IRLE, J., GmbH, p. 106; STER, K., Forderungspfdung, Rdn. 1617, p. 868; BLOMEYER, A., Zivilprozeecht, ?5 II, p. 300; KLAUSS, H.LAUSS, H. J.IRLE, J., GmbH, Rdn. 249, p. 129; RAISER, T., Kapitalgesellschaften, Rdn. 54, p. 525 526; SCHOLZ, F., Kommentar zur GmbHG, 4. Aufl., 1960, ?5 Rdn. 84, p. 229; UHLENBRUCK, D., DB, 1967, p. 1929; SUDHOFF, H., Familienunternehmen, pp. 484 and 485; MEYER LANDRUT, J., GmbHG, ?5, Rdn. 54, p. 234; WIECZOREK, B.SLER, G.CHZE, R., Zivilprozerdnung, ?57, D II C, p. 239 and H III b 1, p. 245; SCHULER, H., NJW, 1961, p. 2281, KORT, M., GmbH, ?8, Rdn. 25, p. 482; SUDHOFF, H., GmbH, p. 457; NOACK, W., Kommunal Kassen Zeitschrift, 1978, 1, p. 11.

[8] See, for instance, in Italian doctrine, FRAGALI, M., BBTC, 1958, I, p. 465; CANDIAN, A., Intorno, p. 91; SPATAZZA, G., Societ?/em>, pp. 361 362; BUCOLO, F., Pignoramento, pp. 144 145 and 151. In Spanish doctrine, see PERDICES, A., DN, 1993, pp. 339 340; ID., Tratando, p. 556; ID., Clsulas, pp. 252 and 292); GALLEGO SCHEZ, E., Homenaje a Schez Calero, pp. 3508 3509); TARRAGONA COROMINA, M., AAMN, p. 99; SCHEZ GONZEZ, J. C., Sociedad de responsabilidad limitada, I, p. 736 and, implicitly, p. 748; CABANAS TREJO, R. CALAVIA MOLINERO, J. M. (Coord.), Ley, pp. 124 125; RECALDE CASTELLS, A., also argues along these lines in Comentarios, pp. 626 and 631; see also YANES, P., Sociedades Animas, p. 1170.

[9] The existence of such cases is disputed. While most doctrine considers shares subject to restrictions to be worth less than unrestricted shares (see, for instance,?ASCARELLI, T., BBTC, 1953, I, p. 311, PEDROL, A., RDPriv., 1949, II, p. 719, UHLENBRUCK, D., DB, 1967, p. 1928 ?who even quantifies the discount at twenty per cent ; FISCHER, R., GmbH Rdsch., 1961, p. 24; WIEDEMANN, H., NJW, 1964, p.

[10] In both cases, transfer restrictions are effective erga omnes and both are placed on the public record. Why, then, should they be honoured in one case but not in the other, when the existence of fraud is not implicit in either? In another vein, note that in such cases it is not feasible either to maintain that pplicability entails a decrease in the creditor property based security?for, inasmuch as the shares were added to the debtor assets subject to such restrictions, by definition, the debtor property never experienced any decline in value. This stands as proof that such ecurity?never existed.

[11] Acci pauliana (sp.), Action paulienne (fr.), paulianische Anfechtungsklage (ger.), azione revocatoria (it.)

[12] Solutions proposed in other countries are likewise rejected here for that very reason. One such solution, for instance, would separate administrative rights from economic rights, in which the latter would be conveyed to the creditor. This device, proposed by French doctrine (see, for instance, ROUSSEAU, J., Trait?/em>, No. 289, pp. 254 255, in connection with No. 268, p. 238; ESCARRA, J. ESCARRA, E. RAULT, J., Trait? No. 389, p. 443, and subsequent references; HOUPIN, C. BOSVIEX, H., Trait?/em>6, No. 1571, p. 147; ID., ADC, 1951, p. 51). From a positive vantage, this is the solution applied to the forced buyer by Swiss law in the event of the forced selling of entailed shares; indeed, Art. 685c Abs. 735 736; GARC AMIGO, M., Comentario, p. 70; ORDU MORENO, F. J., Acci, p. 156; FERNDEZ CAMPOS, J. A., Fraude, pp. 160 161), including corporate contributions (the Spanish Supreme Court Sentence of 9 II 1961, Rep. Aranzadi 325, alludes to the latter as the object of remedy of revocation).

[14] This objection aims to show that the remedy consisting in the non application of restrictive clauses in forced transfer opens the door to other types of fraudulent action, in this case on the part of a partner whose shares are transferred in connivance with third parties to the detriment of the interests protected by the clauses. In other words, failure to apply the restrictive clauses, more than preventing creditors from being defrauded (circumstance which, as discussed above, is not always present) or defending creditors’ interests (for, if the debtor is solvent, the rest of his property will suitably cover such interests) may, rather, enable the debtor, with the aid of other individuals, to defraud such interests. See, as representative of all, ASCARELLI, T., BBTC, 1953, I, p. 310; HEFERMEHL, W. BUNGEROTH, E., Aktiengesetz Kommentar, ?8 Anm. 152, p. 387; BARZ, H., Aktiengesetz Grosskommentar3, ?8 Anm. 14, p. 522; BORK, R., Festschrift Henckel, p. 29.
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