The resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 29th September 2021 regarding the refusal of the Registrar I of the Commercial Registry of Madrid to register a public deed of capital increase of a limited company was published in the Official Gazette on 28th October 2021.
In this case, the universal meeting of partners adopted a resolution to proceed with a capital increase pursuant to the non-monetary contribution of a dwelling, belonging to a divorced partner of the company, and encumbered with a “right to enjoyment” in favour of the children of both spouses and of the spouse whose relationship had been dissolved. The notarial statement incorporated in the public deed clarifies that the contribution is made without prejudice to said right to enjoyment, which has no limit whatsoever, and that the value attributed to the property has taken into account the existence of this right.
The registrar suspended the registration due to the lack of consent of the holder of the right to enjoyment or court approval for the disposition of the dwelling, where such right is that which is provided for in Article 96 of the Spanish Civil Code.
An appeal was filed against this decision.
The Directorate General used its resolution dated 9th August 2019 as a reference. Said resolution dealt with the incorporation of a limited company to which moveable assets were contributed by a divorced partner without the consent of the other spouse, and in said resolution it was stated that “the very object of registration in the Commercial Registry is not the singular business of assumption of the newly created shares, and the consequent legal-real ownership that derives therefrom, but the fact that the contribution covers the figure of the share capital.” The Directorate General adds that “from this point of view, the partnership contract entered into in the case in question is in itself valid between the parties and effective, even when the contributing spouse does not have full power of disposition of the property, the property transfer is voidable as long as the act of contribution can be annulled by the consort”. It concluded that the “contribution carried out infringes the regulation contained in article 1377 of the Civil Code, which requires the consent of both spouses and that, consequently, the business of the transfer, without the explicit or tacit confirmation, becomes annullable at the request of the other spouse or their heirs.” However, “given that the transfer of ownership of the contributed property is not subject to registration at the Commercial Registry”, it cannot be refused by the registrar.
Taking into account the case examined in the aforementioned resolution, the Directorate General confirmed that “there is nothing in Company Law which impedes the founder (of a company) from contributing contingent, annullable or litigious rights, provided that such assets and rights have a financially assessable worth (articles 58 and 59 of the Spanish Companies Act – Ley de Sociedades de Capital, “LSC”), even though, depending on the case, if the contribution made is impaired, the rules of joint and several responsibility of partners and directors regarding overvaluation in accordance with article 73 and thereafter of the LSC shall be applicable.” In the case in question, it is necessary that there exists no doubt regarding the nature of the contributed right, in such a way that, the possible existence of encumbrances or limitations of the domain have been taken into account in their assessment.
The Directorate General conveyed that the decision and the grounds expressed in the Resolution of 9th August 2019 are perfectly transferable to the matter constituting the object of this appeal. It also confirmed that “in both situations the declaration of the will of the other spouse is required for the full effectiveness of the transfer of business; in both cases, the transactions can be annulled at the request of the spouse, whose consent was omitted, or of the heirs; and furthermore, under both circumstances, the transfer, albeit with voidable effectiveness, is valid, and the prospective subsequent annulment would result in the responsibility of the contributing partner under the terms set forth in articles 73 to 76 of the Spanish companies act (LSC)”.
Consequently, the Directorate General concluded that in this case “it is very clear that the partners and the director were aware of rights that were being contributed and of the existence of the right to enjoyment in favour of the indicated beneficiaries”, and that furthermore “they were taken into consideration by the partners and the director for the evaluation of the “in natura” contribution and for covering the amount of the capital.”
Finally, the Directorate General upheld the appeal and revoked the contested decision of the registrar.
Vilá Abogados
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19th November 2021
