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Article 86.1 of the Spanish Capital companies Act (Ley de Sociedades de Capital – “LSC”) establishes that Spanish companies may establish accessory obligations other than contributions.

In the case object of the recent resolution issued by the General Directorate of Registries and Notaries (Dirección General de Registros y Notariado  – “DGRN”) dated 26th June 2018, the partners of a limited liability company unanimously approved the modification of the company bylaws. According to said modification, partners who are considered family members have the unpaid ancillary obligation to comply with the provisions agreed by the partners in the family protocol set out in the public deed.

The public deed in question was filed for registration at the Commercial Registry. However, registration was refused by the Registrar given that the stipulation of the bylaws establishing the accessory contribution of partners infringes article 86 of the LSC, which requires that the bylaws express the specific contents of the assumed obligations. An appeal was filed.

The DGRN, initially confirmed that family protocol is admitted both in the doctrinal field as well as in legislation.

Subsequently, the DGRN mentioned that article 86 of the LSC requires that the essential features  of the ancillary obligations are recorded in the bylaws, and that “concrete and specific contents” are expressed therein. It follows that special rigour is needed for determining this content. It will be necessary to establish the basis or criteria for doing so in such a way as to provide adequate clarity and security in the relations between the parties concerned. And taking into account articles 1271 and thereafter of the Civil Code, it concluded that it is true that a certain vagueness in the amount is permitted, provided that it is possible for it to be determined in due course without the need for a new agreement between the parties. Therefore, not only an absolute and total initial determination is allowed, but a primary or mediate determination are also admissible, however, in the latter case it is also necessary that the criteria are already established or indicated that equally preclude the need for a new agreement between the parties.

Regarding the case at hand, the obligation which the ancillary contribution consists of is perfectly identified by its formalisation in the public deed, therefore, its entire content is determined extra-statutorily in a perfectly knowable manner, not just by the current partners who unanimously passed the agreements, but also by future partners, who upon acquiring the shares (participations) are bound by the ancillary obligation, the content of which is statutorily determinable as provided for.

Consequently, the DGRN concluded that the clause debated is registrable.

Mika Otomo

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