Ceder participaciones sociedad limitada
Contenidos
Capital companies law
Company shares: transfer: The Commercial Registry should not be equated with the Land Registry, especially with regard to successive tract, except in the case of ships, and therefore, when the transfer of quotas or shares in the capital of the company is to be accredited, it will be sufficient to demonstrate in an adequate manner the connection of the rights between the successive holders.
Company shares: transfer: Since it is necessary for the transfer of company shares the execution of a deed and its registration in the Mercantile Register, this requirement cannot be understood to be fulfilled by means of a brief reference, in the explanatory part of a deed of transformation, to the transfer agreement agreed at the Meeting, without the necessary consent of both interested parties appearing.
Transfer of shares: transfer: A deed of transfer of shares based on an exception in favor of one of the partners established in the articles of association and recorded in the Register is registrable.
In general, the donation of corporate shares, assuming that the donor meets the personal requirements of capacity and legal standing, is free when the acquirer is the spouse, ascendant or descendant of the transferor.
Thus, Article 107 of the Capital Companies Act (LSC) (formerly Article 29 of Law 2/1995, of March 23, 1995, on Limited Liability Companies) states: 1. Unless otherwise provided in the bylaws, the voluntary transfer of shares by inter vivos acts between shareholders, as well as that made in favor of the spouse, ascendant or descendant of the shareholder, shall be free. Therefore, from the law it is deduced, sensu contrario, the possibility that the bylaws have restricted the free transfer and the bylaws will be applied in each specific case.
However, the partner who wants to leave the company cannot force the other partners to buy his share in the capital stock, so that, if he does not find an external buyer and the other partners do not want to take over his shares or participations, he will remain irretrievably linked to the company.
As a specific cause of limited liability companies, the partners will also have the right to separate from the company when they have not voted in favor of the agreement to modify the regime for the transfer of the company’s shares.
Law 3/2009, of April 3, 2009, on structural modifications of commercial companies also recognizes a right of withdrawal for shareholders in cases of transformation of the company or transfer of its domicile abroad.
First of all, it is important to refer to the possibility of waiver that the law grants (»unless otherwise provided for in the bylaws», Article 348 bis LSC). This means that the partner’s right of separation can be waived or modified through the bylaws with the consent of all the partners.
How to remove a partner from a company
Therefore, if one of the partners intends to sell his shares in an SL, he must be aware of the requirements and limitations established in the Capital Companies Law in relation to the transfer of these shares.
Unless otherwise provided in the bylaws, the voluntary transfer of shares between partners will be free, as well as those made in favor of the partner’s spouse, ascendant or descendant or in favor of companies belonging to the same group as the transferor. Consequently, it will not be necessary to obtain the approval of the Shareholders’ Meeting, and the transaction must be carried out directly at the notary’s office.
In all other cases, the transfer is subject to the rules and limitations established in the bylaws and, in the absence thereof, those established in the LSC, and there is a preferential right of acquisition by the other shareholders.
The Capital Companies Law does not allow the bylaws to prohibit the transfer of shares or to establish restrictions to that effect. However, they may do so in certain specific cases:
