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Effects “ex tunc” of the nullity of social agreements. Someone always ends up paying for the round.

The BOE of 14 March 2020 (no. 66) publishes the resolution of the DGRN of 20 December 2019, in the appeal filed by Laminados de Aller S.A. against the refusal of the commercial register to register a corporate resolution of 8 April 2019 that replaced a previous one, adopted on 15 September 2014, of a capital decrease by offsetting losses and simultaneous capital increase, which was declared null and void by a final judgment of 20 March 2018.

Briefly, the facts are as follows:

  • On September 15, 2014, Laminados de Aller S.A. agreed to carry out an accordion operation whereby all its shares would be redeemed and the capital would be simultaneously increased to 100,000 euros represented by the same number of shares.

 

  • The agreement was challenged by a partner holding privileged shares (class A) called Sadim Inversiones S.A. for violation of articles 293.1 and 343 LSC, since the agreement was adopted without the legally prescribed “double majority”, i.e. the requirement of a majority of the holders of class A shares was missing and additionally the capital increase did not contemplate the issue of class A shares, which would have deprived the shareholder of a right without his consent, while also violating the preferential subscription right of Sadim Inversiones S.A. over the same type of shares it held. Despite this, Sadim Inversiones S.A. subscribed the ordinary shares corresponding to its participation in the company.

 

  • The nullity of the aforementioned agreement was confirmed by a final decision of the Provincial Court of Asturias, dated 20 March 2018, which expressly stated that “the agreement to carry out the accordion operation approving the reduction to zero and simultaneous increase in share capital will be conditioned for its valid approval to the concurrence of the double majority, which includes the majority of the shares belonging to the class affected, or to the issue of the new shares including the rights for that class; thus complying with the legal requirements for the amendment of the Articles of Association to provide for the guardianship of the minority shareholder“. As we have seen, the original agreement had complied with neither of these.

 

  • In order to comply with the ruling, on April 8, 2019 the General Meeting of Laminados de Aller S.A. approved the replacement of the agreement of September 15, 2014 by the agreement to proceed with the planned accordion operation, but this time including the issue of the corresponding number of class A shares. Although Sadim Inversiones S.A. opposed its adoption, the resolution was adopted by the corresponding majority; and Sadim Inversiones S.A. exercised its preferential subscription right on all the new Class A shares issued.

 

  • The Commercial Registry refused to register the replacement agreement on the grounds, in essence (i) that its registration would alter the necessary reciprocal agreement of the registry entries since there were agreements to modify the share capital after the annulled agreement (30 April 2015) (15 September 2014), the nullity of the first modification would restore the original corporate capital which, in turn, would be incongruent with the existence of another figure of subsequent corporate capital, an incongruity that would make the judicial protection obtained illusory, since it would end up governing the corporate capital approved in the subsequent agreement; and (ii) that the old accordion operation agreement cannot be merely replaced by another one adjusted to the content of the ruling, but that the company must adopt a new agreement in this sense, which implies taking as a basis a new balance sheet approved in 2019, and not the 2014 balance sheet, in addition to meeting other formal requirements inherent in the adoption of this type of corporate agreement.

 

On the other hand, Laminados de Aller S.A., in an extensive document, details the reasons for the opposition to the registration qualification, summarizing these in the following:

  • The replacement agreement must be based on the company’s asset situation (balance sheet) at the time of the agreement being replaced, but not on a new balance sheet drawn up after five years that does not reflect the asset situation to be corrected by the replacement agreement.

 

  • The substitution agreement is valid for correcting both formal and substantive issues of the substituted agreement, as expressed in the STS of 28 October 2012: “The company may ratify, rectify, substitute or revoke ad nutum previous agreements, before being challenged, during the pendency of the challenge process or concluded by a final judgment”, which – however – should not be taken as an alleged “right to repentance” that would damage the rights acquired by the partners (STS 32/2006 of 23 January).

 

  • The judgement of the Provincial Court of Asturias did not pronounce on the cancellation of subsequent entries, resolving that such cancellation should be the object of a separate analysis within an improper execution (arts. 521 and 522 LEC) urged by any party who considered themselves to be harmed. This would not be the case of Sadim Inversiones S.A. since it did not exercise its preferential subscription right in the accordion operation of 30 April 2015, and therefore could not be considered harmed. In any case, the failure to exercise this right led to the loss of its status as a member.

 

  • In relation to the previous point, Laminados de Aller S.A. literally expresses in its statement of allegations that “Sadim does not compete, being in consequence the new capital figure formed exclusively by ordinary shares”, and “… if the interpretation of the commercial register is allowed, we should … allocate class A shares to a phantom partner because it does not exist”.

 

  • Sadim Inversiones S.A. did not request any precautionary measure in proceedings that concluded with the declaration of nullity of the accordion operation, nor a precautionary suspension of the execution of the agreement or even the preventive annotation of its claim in the company’s sheet, so in accordance with the joint interpretation of articles 155 and 156.2 of the RRM carried out by the RDGRN of 18 May 2013, the cancellation of subsequent entries contradictory to the one whose nullity is sought would not be justified, cancellation which could affect the rights of the good faith shareholders as well as the creditors of the company, ex art. 20.2 CCO “The declaration of inaccuracy or nullity shall not prejudice the rights of third parties in good faith, acquired in accordance with the law”.

 

Against the arguments sustained by the Registrar and Laminados de Aller S.A. the DRGN proceeds to cite the Supreme Court’s decision of October 18, 2012, which develops arguments for the admissibility of the revocation and replacement of corporate resolutions by others at any time, from which we extract the following paragraphs:

  • Our system expressly allows trading companies to adopt agreements that render the previous ones ineffective (…) without prejudice to the fact that, as indicated in ruling 32/2006, there is no ‘right to repent’ of rights acquired by third parties and even by partners (…).

 

  • In conclusion, the company can ratify, rectify, replace or revoke ad nutum previous agreements, before being challenged, during the pendency of the challenge process or concluded by a final judgment.

 

It also cites the RDGRN of 30 May 2013, which arguably develops the lack of fit of the general rules of the nullity of business (“quod nullum est nullum effetum habet”) in the field of societies, from which we extract the following paragraphs:

  • Contrary to what some people assume, the declaration of invalidity does not automatically or “ope legis” produce a kind of radical corporate “restitutio in integrum” or automatic return to the state of things prior to the annulled agreement, not even for internal purposes.

 

  • It cannot be ignored that there are two levels in the company, the contractual and the organizational, and that the successive organizational acts adopted by the company, once their legal cause is declared null and void, must be validated or regularized in accordance with the rules and principles of corporate law.

 

  • The precept of Article 6.3 of the Spanish Civil Code cannot be transposed to the causes of nullity of the ASL, nor do the legal contraventions all have the same entity and effects (…) in any case, the jurisprudential doctrine recommends “extreme prudence and flexible criteria” in the application of radical nullity.

 

The legal basis of the resolution also mentions, among other theoretical developments, that

  • Company law is inspired by “two major principles”: that of legal certainty, but also that of traffic safety, with acts performed under an appearance that “third parties can trust” being preserved.

 

  • Corporate resolutions can be revoked and replaced (Article 204.2 LSC), but they can also be rectified (Article 207.2 LSC); although the latter will proceed in the event of ineffectiveness for formal reasons, and in the event of ineffectiveness for material reasons a new resolution of a revoking nature – leaving the previous one without effect – or of a replacing nature – replacing the previous one with another one of materially incompatible content, must be adopted. In any case, the retroactive effectiveness of this type of agreement, whether it is a revocation, a replacement or a remedy, must respect the rights acquired by third parties.

And, finally, after an extensive generic argument on the matters summarised, which is of unquestionable theoretical interest, but of little practical applicability to the case under examination, the decision rejects the appeal lodged by Laminados de Aller S.A. and confirms the qualification appealed against, reasoning that it is not possible to register the substitution of the agreement affected of nullity without adopting another agreement that modifies the terms of the accordion operation of 30 April 2015, in which Inversiones Sadim S.A. could not exercise its preferential subscription right since no class A privileged shares were issued on which to do so. 

In fact, it is of little use – and would be illusory – the subscription by Sadim Inversiones S.A. of privileged class A shares in the accordion operation of 15 September 2014, if these shares were subsequently redeemed in the accordion operation of 30 April 2015, in which no new class A shares were issued that Sadim Inversiones S.A. could subscribe. Therefore, it is necessary to have a substitute agreement for the second accordion operation that combines its content with the agreement of the first one, complying with the DGRN’s pronouncement mentioned in the contested rating note: “If, as a result of the final judgment declaring the nullity of agreements, a situation arises which does not meet the requirements of coherence and clarity demanded by the legislation on the Commercial Registry, it will be the responsibility of those who are obliged to urge the adoption of the necessary agreements to implement the judgment of nullity and to regularise the legal situation of the company with regard to the acts and legal relationships affected.

What happens, then, with the rights of the other bona fide partners that Laminados de Aller S.A. repeatedly invokes? Although the resolution is silent on this matter, it could be deduced that – according to the criterion of the management center – since the subscription of new shares in the second accordion operation by those would not be affected, no rights acquired in good faith would be harmed. As for the duty of the rest of the members to be and go through the new shareholder rights that must be recognised to Sadim Inversiones S.A. – which imply at least (i) a proportional reduction in the capital share of each of the other members and (ii) a lower participation of these in the distribution of dividends – it could also be deduced that it is not considered to be a “new obligation” for these members (art. 291 LSC), which may be debatable.

Finally, with regard to the distinction between the correction of agreements for formal reasons and the replacement of those by others in the presence of material defects, the resolution does not enter into the debate – and this despite the broad doctrinal deployment on the subject – since, having resolved that it is necessary to modify the second accordion operation, the registry qualification is confirmed, without the need to enter into a decision on whether the modification of the first operation should be based on a 2014 balance sheet (correction) or on one from 2019 (replacement), a decision that would undoubtedly have been of considerable interest.  

In summary, this resolution exemplifies the technical difficulty that weighs on the regularization of the corporate history when an old corporate agreement has been declared null and void, because although its effects “ex tunc” are applied with the greatest prudence and flexibility, in most cases there will be conflicting interests of impossible total conciliation, so that the resolution – like the present one – that settles the discussion will produce a more or less serious damage to a party in an unjustified manner.

 

Article published in ALMACEN DE DERECHO on 18th April 2020

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The “Know How” is a non-monetary contribution

Inscribed in a line that we would dare to call “progressive” regarding the interpretation of the principle of integrity of social capital, the Resolution of the General Directorate of Registries and Notaries of December 4, 2019 (BOE Tuesday, January 21, 2020, page 5958) revokes the negative rating of the Commercial Registrar IV of Madrid, and admits the incorporation of a limited company through the contribution in kind consisting of the “Know How” of one of its founding partners.

The resolution is structured in (1) the reproduction, for the purposes of interest, of the Supreme Court Judgment of October 21, 2015, (2) the comparison for analog purposes between the “Know How” and the “Goodwill “, which may constitute an object of contribution in kind, and (3) the reasoning of the Directing Center on the suitability of” Know How “to be considered an asset that – also – can be contributed to the share capital. Specifically it is reasoned in this last point:

“According to article 58.1 of the Law on Capital Companies,” in capital companies, only assets or economic rights subject to economic valuation may be subject to contribution. “And the object of contribution questioned in the registry qualification, even if an intangible asset, has a patrimonial character, is susceptible to economic valuation and appropriation for what can be contributed to society and is apt to produce a profit.In addition, it is different from the mere obligation to make, so that the norm that prevents work or services from being contributed (article 58.2 of the Capital Companies Law). Therefore, the defect cannot be confirmed. ”

The first criticisms of this novel and surprising doctrinal turn have not been long in coming, and highlight the uncertainties that this registration consideration will entail as a consequence of its impact (i) on the principle of integrity of social capital (how can it be seized? How will it be accounted for? Can it be subject to depreciation or accounting impairment?) And (ii) on intra-corporate relationships (how much is valued? What would happen in cases of capital reduction? And in those of dissolution and corporate liquidation ? Can titles that reflect or support this type of intangible asset be transmitted? What happens if the holder of the “Know How” dies?).

The comparison of the “Know How” with the “Goodwill” does not seem very correct in order to justify the contribution of the former, already sanctioned in the RDGRN of October 31, 1986, since although both concepts have the nature of intangible assets , the “Goodwill” refers mainly to items with economic value that cannot be demarcated from the company because they are their property, such as the clientele or business reputation (we estimate that if the clientele depends on one of the partners or if the business reputation is due to the presence of one of the partners, such elements could not be included in the “Goodwill”), and that for inclusion in the business asset needs to be acquired onerously in order to assign an objective value that, it is said, would coincide with its transmission value.

However, and on the contrary, from a material point of view “Know How” does not belong to society, although it has been contributed in exchange for shares, since it is not possible to split a set of practical knowledge of a personal nature – “Know How” which in the contractual sphere would be considered a very personal obligation – of its holder. In other words, the ownership of “Know How” is completely non-transferable from a material point of view, so that this element is not suitable to be classified as a social asset, and therefore to be considered as a contribution in kind.

On the other hand, it was necessary to allude to the Resolution commented on the lack of character of the “Know How” of work or service, and this due to the interdiction in that sense of Article 58.2 LSC, mentioning that the “Know How” is different from the “mere obligation to do”, quite brief and weak justification, because, although it may be considered that the “Know How” exceeds the mere obligation to do, its externalization – in the form of activity, organization, direction or any other – inevitably requires a “do” that collides with the prohibition of the aforementioned provision. In other words, a “doing” (work or service), however qualified, does not lose the character of “doing”, and “knowing” without “doing” is deprived of any economic value.

Finally, the Resolution mentioned does not refer to the amount of the share capital or the total participation in it of the partner or partners who contribute their “Know How”. In fact, if it is the only contribution that the partner or partners make, the value of the “Know How” should coincide with that of the share capital, but, where appropriate, the issuance or assumption premium, with which, said value would have its corresponding reflection in accounts 100 and 110 of the PGC. On the other hand, due to its nature of intangible assets, the “Know How” should be expressly mentioned in note 7 of the Report. Needless to say, the founding partners and the people who derivatively acquire the shares issued in return to the contribution of “Know How” for the term will respond to the company and to the social creditors. five (5) years since the contribution occurs (art. 75 LSC).

As we have mentioned, although it is true that, according to common experience, the figure of social capital is not a sufficient guarantee against creditors, the principle of reality of social capital – that the figure of social capital has a real economic support – continues configuring the regulation of this institution. It is unfortunate that the Commercial Registrar IV of Madrid lacks active legitimacy to challenge this Resolution of the Directing Center before the commercial jurisdiction (STS 149/2019) because with it a dematerializing line of social capital and corporate equity is inaugurated, a line that – if It may well respond to the process of intellectualization of high value-added services – it should be accompanied by an in-depth review of the precepts intended to protect third parties in good faith.

Published in Legal Today on 13.02.2020, http://www.legaltoday.com/practica-juridica/mercantil/prop_industrial/el-know-how-tiene-caracter-de-aportacion-no-dineraria)

International effects Insolvency Proceedings in Spain. The Vulcano Judgment.

The Judgment of the Civil Chamber of the Supreme Court of May 7, 2019 (Rapporteur Sancho Gargallo) addresses heterogeneous issues around bankruptcy proceedings: (i) international competition, (ii) foreign effects of the national bankruptcy proceedings, (iii) thing deemed international material, (iv) real rights, and (v) effects of the agreement, issues whose concurrence and conjugation singles out the judicial resolution and make it worthy of these modest lines.
(1) Summary of the facts
The summary of facts is as follows: a shipyard Vigués, Factorías Vulcano S.A. – as a result of an arbitration award for a dispute in the construction of a ship – owed to an English company, Arrow Seismic II LTD, a loan backed by an approximate amount of 40 million euros. The guarantor, Banco Popular, honored said guarantee, thereby reducing the amount of the loan to approximately 10 million euros. Later Arrow urged before the Norwegian courts – Norway does not belong to the European Union – the execution of the award, and obtained from these courts precautionary measures named under Norwegian law “utlegg” consisting of the seizure of the credit rights that Vulcano held against a Norwegian company called Armada Seismic for the outstanding amounts.
Subsequently, Factorías Vulcano was declared in voluntary bankruptcy by the Commercial Court No. 3 of Pontevedra, recognizing in favor of Arrow approximately 8 million euros as ordinary credit and approximately 1.5 million euros as subordinated credit. For its part, the approved agreement reduced the ordinary credit to approximately 1.6 million euros and the subordinate to approximately three hundred thousand euros.
After the approval of the agreement, Vulcano requested, both in Spain and in Norway, the lifting of the “utlegg” embargoes made. The Spanish Commercial Court referred to the Norwegian legislation on embargoes, affirming – however – that Arrow’s credit rating did not enjoy any privilege. For its part, the Norwegian Court (Office of Coercive Executions of Bergen) denied the cancellation of seizures on the grounds that foreign bankruptcy proceedings cannot lay the groundwork for voiding seizures.
Vulcano reacted to such denial by filing a lawsuit before the ordinary Courts of Vigo requesting substantially a sentence with (a) a declaratory pronouncement on the amount owed by Vulcano after the bankruptcy take-off, and (b) a pronouncement of sentence to Arrow to leave without effect the execution and to raise the embargoes locked on the credit rights of Vulcano against Armada.
The Court estimated points (a) and (b), and the sentence was appealed by Arrow, a resource that was dismissed in its entirety by the Provincial Court of Pontevedra. In the face of said judgment, Arrow filed an extraordinary appeal for procedural infraction on the basis of (i) incorrect assignment of international jurisdiction to the bankruptcy court and (ii) thing deemed international, and an appeal based on what is of interest, on the wrong assignment to Spanish legislation as applicable.
(2) On international competition to hear about actions directly related to insolvency proceedings.
In relation to the international jurisdiction of the Court of Vigo, the Supreme Court is obliged to assess it ex officio – given its character of procedural public order – since the Pontevedra Hearing had erroneously substantiated that on the basis of article 5.1.a) of the Regulation 44/2001, when considering the agreement of creditors as “contractual matter”.
And we say wrong because the aforementioned regulation excludes from its scope “bankruptcy, agreements between bankrupt and creditors and other similar procedures” and therefore cannot be invoked to sustain the international jurisdiction of the Spanish courts. On the contrary, the interpretation conferred by the CJEU (Judgment of February 12, 2009, C-339/2007) to Article 1.3 of Regulation 1346/2000, which was applicable for temporary reasons, is that such provision must be interpreted in the sense that it also attributes international competence to the Member State in whose territory the insolvency procedure has been opened to hear about the actions that emanate directly from this procedure and that are closely related to it, even if the defendant is domiciled in another member state of the EU, corresponding to the Courts of that State the attribution of the internal competence according to its national law, competence that may fall on a different jurisdictional body from the one that dictated the opening of the proceedings.

The Supreme Court, in turn, interprets – as it seemed logical – that the declaratory and conviction actions exercised by Vulcano are directly related to the open competition in Spain; Therefore, the international competence to hear declaratory actions and compliance with the agreement is attributed to the Court of First Instance of Vigo. It should be noted that this doctrine of the CJEU has been transferred to Article 6.1 of the current European Insolvency Regulation 848/2015.

(3) About the thing deemed international

The appellant Arrow alleges that the court of first instance of Bergen (Norway) has already dismissed Vulcano’s claim to lift the embargoes that weighed on her credit rights against the Navy, by means of a sentence that reached its firmness on April 24, 2013, so prior to the action taken before the Court of First Instance of Vigo, a circumstance that would determine the existence of an international res judicata, within the meaning of article 222 LEC in relation to article 33 of the Lugano Convention.
However, the Supreme Court, even admitting the existence of a previous process in which there is subjective identity, and even that the petitum – lifting of embargoes uttleg – is coincident in both lawsuits, considers that there is a difference in the petendi cause of those ; because while in the first of them the justification was the stoppage of executions as a result of the opening of the contest, in the second the justification is the novatory effect of the bankruptcy agreement, which has reduced the credits to 20%, to which they must remain subject to ordinary and subordinated loans under the principle of the conditio creditorum pair and the loss community, which makes it impossible to maintain seizures destined precisely to the extra-bank satisfaction of the original credits.

Article 222.2 LEC provides that the thing judged reaches the “claims” of the claim – the procedural claim must be identified with the cause petendi – but not so to its plea or “petitum”, which could be replayed if the cause of request or “cause petendi” of the second lawsuit would have varied with respect to the first. In our circumstances, there are differences between the first and second proceedings, both in their legally relevant facts, or “cause petendi”, as in their plea or “petitum”:

In relation to the “cause petendi”, in the first procedure, processed before the Norwegian courts, the “cause petendi” was based on the prohibition of continuing enforcement proceedings against the bankrupt (art. 55.3 LC); while in the second procedure, processed before the Court of First Instance of Vigo, the “cause petendi” is based on the novatory effect of the agreement and on the principle of “par conditio creditorum”.

In relation to the “petitum”, while in the first procedure it was requested that the Norwegian Court order the Bergen Seizure Office to lift the embargo on Vulcano’s credit rights vis-à-vis the Navy, in the second procedure it was requested to the Spanish Court that condemned Arrow to desist in the execution followed in front of Vulcano before the Bergen seizure office and, consequently, raise the seized embargoes.

Although the “petitum” is not identical, the existing difference would not be sufficient to justify the uniqueness of each claim, since in the end its purpose is the same: the lifting of the embargoes made in Bergen. That in the first case the addressee of the court order was the Office of Embargoes, and in the second case the seizure itself does not deprive the “supplicants” of both procedures, since said lifting of embargoes is what, in reality, is pretended by Vulcano, and what was denied by the Norwegian courts.

However, as regards the “petendi cause”, the legally relevant facts of the second process are clearly different from those of the first, and could not have been used in it (art. 400.2 LEC) – since the agreement has not yet It had been approved – it cannot be considered that we are faced with a case of res judicata.

(4) On the applicability of Spanish bankruptcy legislation to real rights over debtor assets located abroad.

Article 201 LC provides that the effects of the insolvency of the creditor’s real rights over assets of the bankrupt that are located abroad, will be determined by the law of the state in which they are located, so the creditor Arrow argues that it would be the Norwegian law – and not Article 136 LC on the novatory effectiveness of the agreement – that would determine whether or not the lifting of embargoes is appropriate.

However, the real nature of the “uttleg” executive embargoes is questioned by the Supreme Court, because, having qualified Arrow’s credit as ordinary bankruptcy, that nature was not discussed or contested by the creditor, and therefore it can be considered or alleged that it is a secured loan with a real right, therefore, subject to Norwegian law.

In other words, our High Court reasons that since the ordinary nature of the credit was not discussed by Arrow, it may be wrong later to argue that it entailed a security right. However, such an interpretation would leave the path ajar of assigning to the executive embargo the character of a real guarantee that privileges the credit, when the embargo – as is known – is not only not part of the list of guarantees that privilege the credit (art. 90 LC) , but it is imperatively cancelable after the declaration of insolvency (art. 55.3 LC), and it must be questioned even if it is a true real right, since even if it enjoys an “erga omnes” character and re-sectoral nature, it is more of a Real effect on an executive process that gives a guarantee given on a credit, and therefore is not subject to registration in the Property Registry, but only for preventive notation (art. 42 LH) subject to the appropriate expiration dates.

Therefore, although the effects of the contest on the real rights must be submitted to the “lex rei sitae”, there is no real right of the creditor in the circumstances on the seized credits.

 

  • Article published in Legal Today on 3rd October 2019

Subordination of Credits of Common Shareholders (art. 93.2.3º LC)

The voluntary bankruptcy Tremon Grupo Inmobiliario SA has motivated co cin S entencias the Supreme Court (24 April, 10 July October 23, October 31 and November 22, 2018 ) and a writ of inadmissibility ( December 19, 2018) that address the qualification as persons related to the bankrupt to the partners that participate in the companies belonging to the group of companies of the insolvent, as established in Article 93. 2.3º of the Bankruptcy Law (LC). Although the contest of the Tremon SA Real Estate Group was declared on December 4, 2008, and therefore the norms that the Supreme Court has applied have been in force at that time , the repertoire of judgments clearly illustrates two fundamental aspects in the matter: (i) the temporary moment to consider for the subordination of the credit, and ( ii ) the type of group of companies referred to in article 93.2 .3 of the Bankruptcy Law.

Regarding the first question, how is it peaceful , what devalues iuris et de iure credit is the link between creditor and debtor; in other words, the special knowledge of the financial situation of the insolvent of which they have , among other persons, their partners if the bankrupt is a legal person , except – in this last case – the credits different from the loans or acts with analogous purpose , which are those ” destined to the financing of the insolvent, either by the legal nature of the business (loans, credits, discount, leasing, etc.), or because, although the legal nature is not that of a financing business, a business whose economic purpose is the financing of the insolvent party is being concealed “, According to Sentence 125/2019 of the Supreme Court of March 1 , and among those who , according to the criteria postulated by Judgment 446/2018 of the Provincial Court of Madrid of July 20 , it seems to be also the postponement of the price in the purchases . Therefore , credits that were born before the creditor had acquired the status of a person related to the debtor will be subject to subordination.

Regarding the second question , the cited judicial decisions warn that – not since Law 38/2011, which refers to the definition of group of companies established by Article 42.1 of the Commercial Code – but from the very enactment of the same. Bankruptcy Law , the criterion to appreciate group of companies is ” direct or indirect control “, discarding the “management unit”; therefore, the subordination will operate for the credits of the companies belonging to a vertical or ” hierarchical ” group, and should be discarded for the companies belonging to a horizontal or “coordination” group.

In any case, having applied the original bankruptcy legislation , prior to the modifications introduced in Article 93.2.3º LC by (i) Royal Decree Law 3/2009, which appended “whenever these – the partners of the companies of the same group of the insolvent company – meet the same conditions as in number 1 of this section”, and ( ii ) the Law 38/2001 that added the qualifier of “common” to “its partners”, in such a way that the diction of the precept was as follows: «3.º The companies that are part of the same group as the company declared in bankruptcy and common partners, provided that they meet the same conditions as in the 1st number of this section ‘questions are not clear – for now – by case law. Such open questions are:

1st        Would the criterion – related to the prior nature of the credit to the specially related person status – be applicable to the “personal and unlimitedly responsible for social debts” partners, despite the fact that the wording of number 1 of art. 93. 2 LC seems toomit it expressly for such partners?

2nd        Why are the credits of “The companies that are part of the same group as the company declared in bankruptcy” (under the criterion of “direct or indirect control”) , and also those of the partners that own 5% or 10% of the insolvent company , being clear that these percentages do not provide the “control” of that? Is not it incongruent?

3rd        What is the reason why the precept includes the common partners, who are – in their own right – the partners of the bankrupt that meet the minimum requirements for participation in their capital established in number 1 of art. 93. 2 LC? Are not already said partners of the insolvent – ex iure proprio – considered persons related by said number 1; and therefore is not established by the number 3 a reiteration or redundancy?

Answer to the first question

S hile it is understandable that “ordinary members” have to have such a condition at the time of the birth of credit, as the ultimate reason for the subordination is precisely that partners financed the insolvent with knowledge of the situation, and – therefore – the subordination can not be imposed on the person who financed when he was not yet a member , such subordination requirement only reaches – in the 1st section – the capitalist partners, excluding the partners of companies of persons (with the exception of the limited partners) who are fundamentally what s , according to the law (Article 148 CCO) are personally and unlimitedly responsible for social debts.

It is not well understood, then, that exclusion of the necessary temporary element for the subordination of the credit of the capitalist partners, because the same reason (link of the partner at the time of loan) exists in a capitalist society as in a society of persons,because although in the latter there is not properly social capital, if there is a connatural “portion of interest” of the partners (Articles 140 and 143 CCO and Article 1689 CC).

Although the reason could be that civil and collective partners are born administrators of civil society (Article 1695 CC) , collective or limited (Article 129 CCO) , and therefore its subordination regime must match that of the members of the board of the company sestablished by Article 93.2.2º of the Bankruptcy Law, it remains true that the contractual regime societies can (i) exclude the condition of nato administrator of all partners, allocating such function to a specific partner or partners , or ( ii ) r indicates a system of decision-making by majority, therefore, exempt the member who voted against the decision to participate in the negative effects of social management. However , and n any case, it should also be agreed that credit managers non-members of equity capital companies against the insolvent debtor should also be excluded from subordination if they were born before holding such office , since, at such a time prior to their appointment, the subjective reasons that lead to devalue the credit.

In this line , the answer to this question can be found in the Sentences of the Supreme Court of March 4 , April 24, October 23 and November 22, 2018 , which address the subordination of capitalist partners in a sufficiently abstract manner. so that your reasoning can be transferred without problem to the personal partners . In effect, this jurisprudential repertoire clearly establishes that the concurrence of the circumstances that justify the consideration of a person specially related to the debtor makes more sense that it is referenced at the moment in which the legal act arises whose insolvency relevance is to be specified (the subordination of the credit), that to the later one of the declaration of bankruptcy, without making any distinction between the typology of the creditor partners. Therefore, the temporary criterion of activation of the subordination (moment of birth of the credit) predicable of the capitalist partners, should be applied to the personalist partners – and even to the administrators of the insolvent one – because there is identity of reason among all these assumptions

Answer to the second question

As stated in Sentence 125/2019 of the Supreme Court of March 1 , there is no identity of reason between the subordination of the credits of the partners and the subordination of the credits of the group companies. And if there is no reason identity, it is reasonable that the assumptions receive different treatment : while the basis of the subordination of credits of group companies is – basically – in which the credit of the insolvent company benefits the group and , therefore, , in its own benefit , the foundation of the subordination of the credits of the partners resides in the greater information or capacity of influence that these have (all this according to the aforementioned Judgment) .
However, and without prejudice to the respect that the High Court deserves, the reader will be warned that it will attribute influence capacity to a partner holding 10% of a non-listed company. to the point of subordinating your credit it is somewhat exaggerated,since the degree of participation – despite being significant – and remains minoritari or insufficient, inter alia, to ensure unlimited access to financial information society. And if we counterpose the limited participation allowed to a partner before subordinating itscredit , with the criterion of “control” that implies the direct or indirect possession of a significant portion – certainly more than 10% – of its social capital , we find in said excessive penalty des balance of the insolvent partner. And although it could be objected that the direct or indirect possession of the majority of the voting rights of the bankrupt does not exhaust the assumptions of “group of companies”, it is also true that, empirically, it can be verified that the power to appoint or dismissing administrators is closely linkedto the condition of the direct or indirect majority partner.

In sum, although a ratio legis could be appreciated different for the partners of the insolvent company and the companies of its group, the difference does not justify such a disparate treatment in the maximum percentage of participation in the bankrupt before being allowed to subordinate the credits. De lege ferenda would propose, then, the subordination (i) of the partner who directly or indirectly controls the insolvent party ; ( ii ) of the companies that are part of the same group as the insolvent company – which will necessarily be shared by the control partner – understood as the one that holds the direction of its operational and financial policy, or falls back in any of the circumstances indicated by article 42 of the Commercial Code ; and ( iii ) common partners that exceed the significant participation threshold, as will be explained in the following reply.

Answer to the third question

It is not easy to answer the reason why – in fact – what Article 93. 2.3º LC states is that the credits of the companies that are part of the same group as the company declared in bankruptcy and its partners will be subordinated. common , provided that thesecommon partners are already subordinated their credit for being related persons in their own right . This It is a reiteration or redundancy of difficult utility or explanation , since these “common” partners are only considered as related persons, if they are already related to article 93. 2.1º LC . Therefore declare persons related to the “common partners, provided that they meet the same conditions as in the 1st number of this section” tautology seems clear justification uncertain.

In the absence of real or judicial interpretation that illuminates the meaning of the provision,  may be followed would be applying compliance with the requirements of point 1 of paragraph not insolvent, but the company belonging to same group , hypothesis already advanced by QUETGLAS ( The bankruptcy of the group of companies , page 213) . In this case, the following would be considered to be specially related persons: the partners who exceeded the 5% and 10% share respectively in the company of the same group as the bankrupt and who – at the same time – maintained some participation in the insolvent company, however minimal it might be.

The legal reason behind the interpretation would be a composition of the reason for the subordination of credits of the partners of the bankrupt ( influence, information , with the criticism that has been made on this criterion in the answer to the second question) with a presumption of having such influence and information on the bankrupt one of its partners – even if not meet the thresholds of 5% and 10% stake in the insolvent – that reach at least those percentages in any other company of the group of the bankrupt.Exist, in this case, a rebuttable presumption in law that one partner which exceeds the percentages required in a group company of the insolvent, however distant that may result in the organization, and also has any stake in the insolvent itself, even if it is small, it deserves to be considered a person especially related because participating in the capital of more than one society denotes a link with the “policorporative enterprise ” more narrow and with more visions of permanence (partner insider ) than that owned byanother exclusive partner of a group company , even if both are minority .

In other words, whenever a partner of a company in the group of the bankrupt exceeds the legal limits of participation in it , the amount of any participation in the bankrupt itself – before the granting of the loan – would transmit the subordinate effects formerlyproper to the partners of the bankruptcy , for having also propagated the presumptions of influence and information of the bankrupt that the former have.

The proposed interpretation has to be contrasted with the jurisprudence relapsed on the subordination of credits owned by partners participating in group companies , and especially with Sentence 239/2018 of the Supreme Court of April 24 , which is particularlyillustrative of the ” partners c omunes “, although without explaining the meaning of the apparent redundancy:

  • Apparently, the proposed interpretation would be divergent from the jurisprudential justification of the requirement introduced by RDL 3/2009 that the “common partners ” of art. 93. 2.3º LC ” meet the same conditions as in number 1 of this section” , requirement , justification that is summarized in that

“Did not have í a sense make worse condition or na partners companies within the same group of the insolvent that members of the insolvent itself, inasmuch as the former not being required a certain percentage m í nimo of participation or n the law expressly exig I a in the case of partners of the insolvent “

However, this explanation is perfectly transferable to the participation of the “common partner” in the company of the insolvent group – not in the bankrupt company itself – to whom the reform also equates with the partners of the insolvent for the purpose of participation in capital (A certain threshold is required, be it 5% or 10%, both in the insolvent company and in any other company in the group) . In this way, the exceeding of said threshold in the group company, together with the taking of participation – whatever it may be – directly or indirectly in the insolvent company , could be valued as an external signal of special linkage of the creditor with the corporate group, with the usual presumption of information and influence, which would justify the subordination of your credit.

It should be added that the express admission of the “indirect” participation in the bankrupt (article 93.2.1º LC) would allow a member of an upstream company of the group of the insolvent party , which has a share of more than 10% may be “indirectly” a member of the insolvent company – which would meet the conditions of subordination – without having any direct participation (for example, when you own 10% of the parent company at 100% of the bankrupt).

  • On the other hand, the proposed interpretation is not misaligned purpose of reduction of the subjective scope of the subordination of credits, operated by Law 38/2011 , when introducing in art. 93. 2.3º LC the requirement that the members of the company of the same group be “common” , as expressed in the Judgment:

“However, it is not so clear that the requirement that it be a common partner, meaning that it was not only the company of the group of the insolvent, but also the latter, was implicit in the original drafting of the precept. It was convenient not to extend subordination to external partners indiscriminately, but it is not so clear, as in the previous case, that under the original wording the standard would like to reduce this extension by limiting it to common partners. “

The proposed interpretation does not stop reducing this subjective scope, although to a lesser extent than that which is inferred from the literal nature of the rule, which reduces the subordination to those partners that are already subordinated creditors by virtue of the overcoming, directly or indirectly. , of the legal thresholds foreseen (Article 93.2.1º LC), an interpretation that would turn out to be – by the exposed – a redundancy without apparent constructive utility.

In any case, the question remains open until the Supreme Court does not begin to resolve appeals corresponding to litigation arising from open competitions in which the current wording of Article 93. 2.3 LC is effectively applicable.

The distressed-assets buyer must pay the amounts not disbursed by FOGASA

Judgment 981/2018 of the Labour Chamber of the Supreme Court, dated November 27, 2018, which has been said to seriously compromise the viability of productive units in bankruptcy headquarters has to be valued according to their proper intelligence .

Although some voices have pointed out that, in accordance with this ruling, the Social Jurisdiction can turn into a paper that has been declared by the Bankruptcy Judge in the Adjudication Order about the existence or not of succession of company for the purposes of article 44 of the Statute of the Workers (ET) – which determines the subrogation of the new employer in the labor and Social Security rights and obligations of the previous one, including those pending, in accordance with the third section of the precept – the truth is that the Commercial Judge does not have, nor has never, competence to rule on whether or not there is succession of a company, because this undoubtedly exists by legal imperative when the circumstances provided by the rule occur.

A different question is that – if there is a succession of a company – the Insolvency Judge has the power to agree that the purchaser is not subrogated to the amount of the salaries or indemnities pending payment prior to the alienation that is assumed by the Guarantee Fund Salary (FOGASA) in accordance with article 33 ET. This possibility is expressly provided for in article 149.4 of the Bankruptcy Law (LC). But what should not be controversial is whether the outstanding salaries that have not been paid by FOGASA have to be paid by the awardee, because in effect, by virtue of the succession of the company, such outstanding compensation has to be paid by the new employer , which has been subrogated in the pending obligations of the previous one.

The Supreme Court uses four arguments in the Judgment that serve to support that decision, arguments that we will explain, below, in order of relevance:

1º.- The article 44 ET is a norm of imperative character, reason why to exception its application would require an express legal declaration, declaration that does not exist in the law.

2º.- Article 148.4 LC expressly refers to Article 64 LC which refers, in turn, to the rules on collective modification and termination of employment contracts, a reference that would be superfluous to admit that the awarding of productive units implies a true business succession “Since the acquisition of the autonomous productive unit would not entail the assumption of the workers of the employer, so the liquidation plan should be limited to contemplate the conditions of realization of assets and rights of the insolvent, but without any regard to the situation of workers”

3º.- The interest of the contest referred to in article 148.2 LC can not become the supreme criterion that governs the adjudication of the goods, and therefore its application can not be against legem.

5º.-  In the factual case, the substantive requirements are met, so that company succession can be appreciated.

Therefore, this Judgment, in our opinion, does not imply a change of paradigm in terms of the labor consequences of a bankruptcy acquisition of an independent productive unit, but confirms what is provided by law: the bankruptcy judge can agree that the purchaser it is not subrogated in what was paid by FOGASA, but it does not have anything in regard to the amounts that have not been paid by that body – in accordance with article 33 ET – that remain in the liabilities of the purchaser.

The Grouping of Companies and its Interest

As the doctrine has repeatedly made clear, there is no concept of a unified group of companies in Spanish law, and it is also complicated that such total unification will occur in the future, since the requirements to consider the existence of a group of companies for certain purposes (for example, corporate) are due to different reasons from those necessary to consider it for other purposes (for example, for tax purposes or for labor purposes), resulting – besides – that the existing definitions are not accompanied by internal regulation of the phenomenon, but they are mainly due to legislative protection purposes to third parties.

However, in general mercantile terms, the definition of a group (Article 42.1 of the Commercial Code) constitutes the fee to which the regulations that discipline specific sectors within the commercial sphere are remitted, such as the company (Article 18 of the Capital Companies Law), the bankruptcy (Additional Provision 6 of the Bankruptcy Law), or that of the securities market (art. 5 of the Securities Market Law). Such group definition is based on the concept of “control” – there is a group when one company has control of another or others – without the legislator being able to define, in turn, what this control consists of, although it establishes the presumption iuris tantum of existence of such control when the dominant company holds, directly or indirectly, the majority of the voting rights of the dominated company, or has the direct or indirect capacity to appoint the majority of the members of its management body. Although the precept literally states that there is a group when the dominant society “holds or can hold”, we have omitted this nuance, since all societies can potentially hold control of another or others (it is enough to acquire the necessary social participation), but obviously this potentiality can not be included in the definition of a group of companies.

The control criterion adopted by Article 42 CCo refers directly to the relationship of subordination or vertical between the companies that make up the group, with a dominant company and dominated companies; Therefore, it implicitly excludes the formation of groups in a coordination or horizontal relationship between the societies that make them up. Within the relationship of subordination, control seems to be appreciated through the criterion of majority participation in the capital of the dominated company. But this does not mean that the criterion of unit of decision has to be discarded; On the contrary, this criterion can support by its own means the qualification of a group of companies as a corporate group.

As mentioned above, article 42 CCo presumes iuris tantum that there is control – and therefore a corporate group – when the dominant company holds the majority of the voting rights of the controlled company. However, the presumptive nature of such a qualification necessarily implies that not all the relationships of majority participation, direct or indirect, should be classified as groups. In effect, the norm seems to require an additional component to the mere majority participation; said component being its control, or rectius, the decision unit between the dominant and the dominated. Consider that, if this additional component were different from the decision unit, it would not make sense for the group of companies to be required to consolidate annual accounts.

The criterion used by Article 42 CCo partially translates into Spanish law the notion of “related companies” included in article 3.3. of the Commission Recommendation of May 6, 2003, on the definition of micro, small and medium-sized enterprises, excluding the presumption of existence of a corporate group in the event of exercise of dominant influence of one company over another based on a contract or in a statutory clause; in which case, the burden of the procedural evidence (onus probandi) on the existence of control will fall on whoever alleges its existence.

hus, in the Spanish internal order will qualify as a corporate group, with all the legal consequences that this may entail, to the relationship between a majority owned by another, unless the interested party demonstrates that, although there is such majority participation – Objective and easily demonstrable element – there is not, on the contrary, a unit of decision, which turns out to be an element of more arduous and subjective demonstration for a third party litigant. Thus, it seems that the legislator, through such presumption iuris tantum, seeks to protect or defend such third party that alleges the existence of a corporate group to defend their interests, as it will estimate its existence provided that the majority participation is proved, either directly or indirect, in the dominated society. And if any of the companies of the group discusses such qualification, on it will fall the proof to demonstrate that the necessary unit of decision does not exist. Therefore, the nuclear concept of “unity of decision” resounds in silence – or is conspicuous by its absence – since, although Article 42 of the Commercial Code does not use this expression, or even suggest it, it seems that the straight line interpretation of the precept has to travel that motor axis, which imbues and is inherent to the whole notion of “group of companies”

In line with the foregoing, the existence of a corporate group (a) will be appreciated when the majority share of the parent company in the dominated company, and the decision unit between both; (b) when only the majority participation is present, if it is not possible to prove that there is no decision unit between the parent company and the parent company; and (c) when, in spite of the lack of majority participation, the interested party is able to prove the existence of a decision unit, no matter how small the assumptions in which this may occur may appear. In assumptions (a) and (b), the rule presumes that the majority participation entails the imposition of the business criterion of the majority shareholder – which is absolutely lawful as long as said criterion is not imposed abusively – while in the case (c) the unit of decision, in the absence of participation that supports it, can be based on statutory provisions, on parasocial agreements, or on the so-called “domination contracts” (unrelated to our legal system, but recognized in legal systems such as German or Brazilian), or in any other legitimate form of dominative control not based on a majority stake in the share capital.

Of course, they always plan on the vertical or control group relationship both (a) the external risk of derivation of responsibility towards a third party from a subsidiary to its majority partner or even to the head of the group, such as (b) the risk internal due to the legal remedies that the minority shareholders have against strategic decisions of the parent company that adversely affect the subsidiary in which they participate.

At least the doctrine of the lifting of the veil should be cited – if there is patrimonial confusion between the societies of the group or animus fraudandi of any of the societies of the group – of the doctrine of the administrator of fact, of the doctrine of the appearance, or even the doctrine of improper solidarity based on the community of interests, which would be available to third parties harmed by one of the group’s companies. However, the degree of involvement of the parent in the management of the subsidiary that could cement the identification of the former as a de facto administrator remains an open question. A reasonable position would be to consider that as long as the parent’s influence on the subsidiary is limited to designing the strategic coordination of the company with the rest of the group, without carrying out day-to-day management actions specific to its management body, there would be no basis to designate to the matrix as a de facto administrator.

Regarding internal risk, this naturally arises from the possible breach of fiduciary duties owed to the minority shareholders of any of the companies that make up the group, which have a dual aspect (a) the fiduciary duties of the parent company in the adoption of board agreements (article 204.1 LSC), and (b) the fiduciary duties of the administrators of the subsidiaries (article 227 LSC). The former will prevent the matrix from adopting decisions – even within the framework of strategic and organizational coordination – that are abusive because they clearly prejudice the interests of the members of a group company, who as third parties possessing legitimate interest will be entitled to to challenge the resolutions of the parent company that adversely affect their interests. The latter will prevent the administrators of the dominated society from breaking their obligation of loyalty and their duties of independence and acting in the best interest of society against the partners (our order, unlike the German, does not know any exception to this duty fundamental), so they can not execute orders imposed by the majority partner – the dominant company – that has appointed them to the position, if they contravene in the social interest; the partners were entitled to exercise the social actions of responsibility against the administrators that proceeded (articles 238 and 239 LSC).

In light of the above, and in the absence of substantive precepts that discipline intergroup relations between the dominant society and the dominated societies, it is questionable whether it will be possible in law to implement even a strategic and organizational coordination common to the group, established by its matrix, that responds to its legitimate economic interests and that inevitably produces a negative externality to one or more of the dominated companies; and that, at the same time, is opposable to a possible legal action of the injured partners.

The jurisprudence has addressed this question in the Supreme Court Judgment of December 11, 2015, noting that a balance could be found between the damage caused to the dominated company and the logical power of its parent company to establish guidelines for organizational coordination, through the receipt by the injured company of the so-called “compensatory advantages” that can be materialized in the aliquot part of the overall benefit received by the group of companies – the result of the action that in the first place has harmed the dominated society – or in another type of advantages and benefits that would not occur if the damaged company does not belong to the group of companies (ubi commoda ibi incommoda) so that such benefit compensates, at least, the damages derived from the decisions of the parent regarding the organization and objectives of the group of companies.

By reproducing the most significant expressions of the aforementioned Judgment, suffice it to say that although his text begins by severely recalling that

The right administrator of the subsidiary has its own area of ​​autonomy of decision that can not be affected by a kind of “due obedience” to the instructions of the group administrator that unreasonably harms the interests of the society it administers, for which has to watch.

it then goes on to recognize a possible “justification” for the damage suffered by the dominated company, which would happen because the damage did not jeopardize the existence or viability of the dominated company, and that it would receive

(…) compensatory advantages that justify that some action, considered in isolation, could be a detriment to society (…)

The aim is to make a balance of the advantages provided or the benefits made in both directions (from the company to the group and from the group to the company) and to conclude whether or not there is a negative result for the subsidiary. (….)

In any case, they must have an economic value, and be proportionate to the damage suffered by the subsidiary in the action for which liability is required (…)

As a conclusion of these very brief lines on this complex and unknown subject for our positive law, it can be affirmed that (i) the content of the concept of “control” used by article 42 CCo is none other than the “management unit” understood as strategic and organizational coordination imposed by the parent company on the group’s subsidiaries, “management unit” that could be implemented by any means, even though the most common – by far – the majority shareholding, and that (ii) although the interest social prevails over the interest of the group, jurisprudence does not seem to sanction the damage suffered by a subsidiary if it receives an objective “compensatory advantage” and derived exclusively from the affiliation of the subsidiary company to the group.

The Registration of the Reservation of Title over Inmovable Goods

The Directorate (CD) has resolved on November 28, 2017 (BOE 14.12.2017) an appeal lodged by the notary granting a deed of sale of property with deferred price, against the calification note issued by the Registrar of the Property for which he suspended his registration, because the guarantee for the price that was postponed had been configured between the parties by means of a pact of reservation of title over the property.

The Directorate profusely deals with the nature of the domain reservation agreement, and rejects the four arguments of the Registrar that substantiated its calification note:

1 The Registrar argued that, since there would not have been a transfer of title, there is no modification of any real right to register in the Registry, in accordance with the provisions of Article 2.1 of the Mortgage Law (LH); also adds that the material result of the pact would be equivalent to the pacto comisiorio, forbidden in Spanish law, since, in case of non-payment of the deferred amount, the seller would recover full ownership of the property without liquidation and without public procedure for setting the price .

The CD inadmits this line of argument referring to the jurisprudential recognition of the pact of reservation of title (STS 12.03.1993) and the possibility also admitted jurisprudentially that the autonomy of the will modulate the purchasing regime of property (Article 609 CC), provided that said will does not imply a contravention of the law, morality or public order (STS 20.06.2000); and although it is true that in the presence of the pact of reservation of title there is no transfer of title, it is also true that such pact generates quasi-real effects (ius ad rem) that must be reflected in the registry, such as the prohibition of disposal of the owner and the best right that assists the buyer before a seizure of the property by the seller’s debts (STS 16.03.2007).

With reference to the identification of the pact of reservation of title with the pacto comisiorio, would be valid also the argument of the CD, because although this is prohibited in defense of the debtor, the pact of reservation of title is admissible, admissibility fruit of the different nature legal status of one institution and another. In addition, the pacto comisorio assumes the direct appropriation by the creditor of the property offered as collateral by the creditor, prohibited by the order for the quantitative difference that may exist between the debt and the value of the collateral, and by the absence of auction mechanism that objectivize such value, being able to produce unjust enrichment for the creditor. However, (i) the title reservation agreement does not imply the appropriation of the guarantor, since it never left the creditor’s estate; and (ii) the valuation of said good is the equivalent of the purchase price freely agreed between the parties, a price that has been postponed and unpaid; and if it were the case that the buyer had delivered some amount to the seller, the reimbursement of said amount must be accredited as a condition for the registration of the ownership of the buyer, in accordance with art. 175.6º of the Reglamento Hipotecario (RH).

2º The second objection raised by the Registrar is that, at its discretion, compliance with the payment obligation cannot condition the transfer of ownership, since the payment is an essential element of the contract of sale and is not reducible to the category of suspensive condition (distinction between conditio factii and conditio iuris), for which reason we would not be faced with a condition on which the consummation of the business depends, but rather with an “agreed modalization of the effects of the business”. However, this reasoning is rejected by the CD in voluntarist terms of jurisprudential origin of protection to the creditor (STS 12.03.1993), and in the very assumption that the fullness of the transmissive effect may be subject to full payment of the price (STS 24.07.2012).

3º The third argument put forward by the registrar refers to the availability of means expressly provided for and regulated in the legal system (Article 11 LH) that produce the same effect, such as the resolutory condition established in Article 1.504 CC. At this point, the CD refers to its resolution DRGN of 12.05.2010 and collects an illustrative doctrine about the character of numerus apertus of real rights, which we transcribe in its entirety:

 “(…) As this Directorate has repeatedly pointed out, it is undoubted in our Order that the owner can dispose of his assets, and, therefore, constitute liens on them, without further limitations than those established in the laws (article 348 of the Civil Code). Not only is it possible to establish new real property rights not specifically provided for by the legislator, including any act or contract of an unnamed nature of real significance that modifies any of the powers of ownership over immovable property or inherent rights (see articles 2.2. º of the Mortgage Law and 7º of the Reglamento Hipotecario), but also the alteration of the typical content of the real rights legally foreseen and, in particular (articles 647 of the Civil Code and 11, 23 and 37 of the Mortgage Law) subject them to condition, term or mode. But it is also true that this freedom has to conform to certain limits and respect the structural norms (imperative norms) of the legal status of property, given its economic-political significance and the “erga omnes” transcendence of real rights, so that the autonomy of the will must be tempered to the satisfaction of certain demands, such as the existence of a sufficient justifying reason, the precise determination of the contours of the real right, the inviolability of the principle of freedom of traffic, etc. (Resolutions of June 5, October 23 and 26, 1987 and March 4, 1993, among others).

Indeed, although the condition of termination and the covenant of reservation of title have the same protective purpose of the creditor in case of non-payment of the deferred price, the legal effects pending from one and the other differ essentially, since while in the first case the transfer of title has been full, and therefore the property can be transmitted and seized by the buyer’s debts, in the second case neither the buyer nor the seller can transmit the property, and the action of the creditors of each of them is limited to their own rights. Therefore, the legal regulation of the business must be left to the autonomy of the will while the condition is pending compliance – whether it be suspensive or resolutory – and the deadline for compliance has not elapsed.

4º Finally, the CD also does not accept the rejection of the registration to the registration based on the specialty principle of the property registers, because of the indeterminacy over the domain that the reservation pact originates while the condition is pending compliance . However, for the CD, there is no problem of any ownership indeterminacy since during the pendente conditio period there coexist two opposing but complementary rights, which exhaust the full ownership of the property: the first is current and the second expectant or latent (ius ad rem), and after said period the consolidation of the full domain will take place in favor of the party that duly certifies that the result of the condition was produced in his favor (RDGRN 12.05.2010).

To conclude this brief note, we must point out in practical terms the equivalence of the pact of reservation of title and of the resolutory condition in the registration and insolvency fields, and its substantial difference in the tax sphere:

(A) Regarding the registry regime, it is important to point out the equivalent treatment of the resolutory condition and the domain reservation pact imposed by article 175.6º RH, when, as a result of each one of them, the full domain is reassigned to the seller. In such cases, the registration will be conditioned to the reimbursement to the buyer of the amounts paid.

The quoted registry provision is projected in the private obligational scope by preventing compensation between the necessary reimbursement to the buyer and the possible penalty clause that could have been agreed between buyer and seller in the event that the former did not pay the deferred payment. In this case, the seller is not exempt from making the refund to the buyer of the amounts that could have been paid under the justification that they would have been automatically compensated with the amount of the penalty; but it will undoubtedly have to reimburse them to the buyer so that the registration of their right takes place; This is without prejudice to the fact that – subsequently – the seller may claim the penalty from the buyer through a declaratory procedure, fully subject to the rules on the matter, including the power of judicial moderation of the penalty.

(B) With regard to the bankruptcy sphere, it is only necessary to point out that both the resolutory condition expresses and the pact of reservation of title produce the qualification of the secured credit as specially privileged (Article 90.1.4 LC), with all the consequences legally planned.

(C) Finally, within the tax sphere, two important issues should be noted. (i) although the consolidation of the right of full ownership occurs at different times, the ITP derived from the transfer of ownership will be accrued, both in cases of express condition and as a result of the reservation of title, at the time of the transmission of the good. (Article 2.3 RH, concordant with article 75 of the Law 37/1992 of the VAT); and (ii) although the registration of the resolutory condition is subject to taxation of ITP (Article 7.3 ITPAJD Law) or AJD (Article 73 RITPAJD), it is much more doubtful that the constitution of a domain reservation agreement is subject to to said tax. (Article 7 ITPAJD Law and Article 31 of the RITPAJD).

Short comments about managers liability arising from 367 LSC

One of the main risks of the management body of a capital company, whether individual (sole administrator), shared (joint or several administrators) or collegiate (board of directors) is the potential joint and several liability for company obligations arising after the concurrence of a legal – non-statutory – cause o company dissolution, which is imposed by article 367 of the Capital Companies Act (LSC), for cases in which after said cause, the organ (i) does not convene within the term of two months the general meeting to adopt, where appropriate, the dissolution agreement or the voluntary bankruptcy if the company was insolvent (Article 365 LSC); or (ii) does not request judicial dissolution or, if applicable, the insolvency of the company, within two months from the date scheduled for the meeting, when it has not been established, or from day of the meeting, when the agreement would have been contrary to the dissolution.

The sanction to the administrative body does not cause the violation of the duty of diligence in the management, as in the case of company action (Article 238 LSC) or individual (Article 241 LSC) of responsibility since the object of protection is not they are the interests of the partners, but that of the company creditors and of the commercial traffic itself, which harms the existence and performance of a paralyzed, decapitalized or insolvent society that contracts obligations – whether contractual or extracontractual (STS 10.03.2016) – whose compliance is seriously compromised because of that state. However, the duty of diligence of the administrators requires them to have correct knowledge of the situation of the company (Article 225 of the LSC), which implies knowing their financial status at least on a quarterly basis (Article 280 CCo).

The nature of liability for debts has been doctrinally classified by the Supreme Court as an ex lege responsibility for another’s debt, and not as a contractual or tort liability [with the consequence that, in the event of bankruptcy of the administrator, the credit will be qualified as pre-deductible or against the mass (STS 16.11.2017)] and in spite of its severity the Courts have to apply it strictly (STS 18.01.2017), and it can be imposed on the de facto administrator (STS 18.07.2017) and even on the individual representing the administrator legal person (article 236.5 LSC and SAP Álava 29.12.2016).

The seriousness of the consequences of the exercise of the action for debts makes importance to the substantive exceptions that can – in its case – make it decay before the Courts. Such exceptions are of a heterogeneous nature and fundamentally refer (i) to the moment of the birth of the company obligation, (ii) to the period of birth of the company obligations, (iii) to the removal of the cause of dissolution, (iv) to the term of limitation of the action for debts, and (v) finally to the abuse of right of the creditor.

(I) In reference to the moment of birth of the obligation, which should be directly related to the moment of concurrence of the cause of corporate dissolution, the jurisprudence of the Supreme Court has indicated that the obligation arises when it is constituted according to law, and not when it becomes due, liquid and due (STS 01.03.2017); with the important qualification that if in the constitution of the obligation it is subject to a condition precedent, it will be understood as born at the moment in which the condition that activates it is fulfilled (STS 08.10.2014), and if it is submitted to a resolutory condition, it will be understood as born at the moment in which the resolution originates the consequent obligation of restitution (STS 10.03.2016). Even so, the genetic moment of the unfulfilled obligation by society must be addressed, without the possibility of going back to a pre-existing obligation that caused the breached obligation – unless they are intrinsically related – otherwise the antecedent obligation would be excessive. constitutive moment of this (STS 01.03.2017) to the detriment of the interests of the company creditors, whose possibilities of action against the administrators are reduced the more anticipated the date of constitution of the unfulfilledcompany obligation. This is, for example, the case of procedural costs, which are not considered intrinsically linked to the obligation that has generated the litigation, and whose payment is a company obligation that is considered to have been born at the time when the Sentence that imposes them (STS 29.11.2017); although not that of the default interest accrued by an unfulfilled company obligation, which are considered born at the time of the obligation that they bring cause because they are very strongly linked to it (STS 10.03.2016).

(II) In reference to the period of birth of the company obligations for which the administrator must respond, it should be noted that they must be understood to be limited to those contracted by the company in the event of dissolution during the exercise of their position. In this way, the administrator will not be held responsible for the obligations arising after he has ceased to hold office, despite the fact that the breach of the duty to promote the dissolution and liquidation of the company due to the legal cause of dissolution has taken place. in force his appointment (STS 14.10.2013 and STS 02.12.2013), having to consider that the date of cessation in the position is that of his effective removal and not that of its registration because it has merely declaratory, non-constitutive effects (STS 19.11 .2013).

(III) In specific reference to the cause of dissolution for losses that reduce the equity to less than half of the share capital, it must be considered that the administrative body does not incur any liability if it timely remedies this reason through the appropriate increase or reduction of the company capital within the period of two months granted for the convocation of the general meeting with a dissolving purpose. Although this possibility is not expressly foreseen, the company responsibility of the administrators has been ruled out by the untimely removal of the aforementioned cause of resolution with respect to the obligations arising after the removal (STS 14.10.2013), so it should be understood that the timely rectification must exonerate the management body that corrects the cause of dissolution even more with due reason even before the expiration of the two-month deadline whose overcoming carries the joint and several liability. Although for the rest of legal causes of company dissolution the possibility of timely or untimely correction is not contemplated, no reasoning is found – coherent with the purpose of the norm – that would prevent the exonerative appreciation of its removal.

(IV) In reference to the limitation period for the action for debts, it should be noted that although the term of four years established by article 241 bis LSC refers only to the corporate action and the individual action of liability, it seems that four-year term is also applicable to the action for debts of article 367 LSC (SAP Barcelona 27.09.2017), which implies that for its calculation the dies a quo will be set on the date on which the action had begun to be exercised – general criterion of actio nata (Article 1969 CC) – a transcendental issue, since such criterion deviates from the one established by Article 949 CCo, which establishes the dies a quo on the date on which the administrator ceases. Although, in general terms, the criterion of the date of cessation is more disadvantageous for the administrator, it could be circumstantially beneficial if the company creditor could not legitimately know the existence of the violation of the duty to promote company dissolution.

(V) Finally, the liability action for corporate debts is dismissed by the Courts, in application of Article 7 CC, if its application involves abuse of right because the creditor has known the cause of dissolution of the company at the time of having constituted the obligation (STS 22.11.2006), or by participating directly in the omission of the duty of the board of directors to call a meeting of shareholders (STS 18.06.2012), or by having caused the debtor company’s undercapitalization with its conduct it falls in cause of dissolution.

Division of Companies and Insolvency Claw-Back Actions

The Judgment of the Supreme Court of November 21, 2016 (rapporteur Ignacio Sancho Gargallo) addresses several matters while resolving the ability of a rescissory bankruptcy action to deprive an effective structural modification such as the división of companies. Therefore, reading this resolution becomes an interesting legal excursion through the domains of corporate law and bankruptcy law.

The insolvency administrator of a spin-off company files a bankruptcy insolvency incident in which he exercised the bankruptcy rescission action against the transfer of assets that led to the spin-off. As will be remembered, the división, or split, is the universal transfer of an economic unit of the spun-off company to the beneficiary company in exchange for shares or social participations of the beneficiary company payable to the partners of the spun-off company. In the case of the spin-off, the potential asset depletion that may occur is more severe than in cases of segregation, since in the latter case it is the segregated company itself that receives the equivalent of the value of the transferred equity in the form of titles representing the capital of the beneficiary company.

The split continues the legal regime of the merger, and therefore its registration registration shields it against any action of challenge other than that of its nullity based on the infringement of the procedure provided for in art. 47.1 of Law 3/2009 on Structural Modifications of Capital Companies (LME). For this reason, the insolvency administrator argued that what was challenged – in fact – was not the split, but the transfer effects of the same as they affected certain properties transferred by the company spun off to the beneficiary company.

The insolvency administrator is obliged to ensure the integrity of the active mass of the bankruptcy, and for this purpose he will be obliged to exercise the rescission actions and other challenges that may arise, in trusteeship of the rights of the creditors. Although the judgment does not extend to this, it seems that the creditors did not formulate in a timely manner the right to oppose the merger granted by the LME; and for this reason, there are no procedural obstacles that can sustain the challenge of the split once registered in the Mercantile Registry. It could be considered that, in this particular case, the creditors waived their right to oppose the spin-off until the spin-off company had adequately guaranteed the collection of their credit (Article 44.3 LME); and that – therefore – their credit rights enjoyed the due protection prior to the exercise of the bankruptcy rescission.

The acting insolvency administrator does not contest the division agreement, but the transfer effects derived from it. However, the Supreme Court establishes that it is impossible to dissociate the legal business from its effects, given that these are not a consequence of that, nor a sort of reflex or collateral effect, but that the split consists essentially in the transfer of assets from the company spun off to the beneficiary company, and therefore said translation is – in itself – the same split that is incontestable, except for the cause expressly provided for in art. 47.1 SML that enables the annulment action to be exercised (articles 47.2 and 47.3 SML).

However, before reaching this conclusion the Supreme Court stops its analysis in the figure of the termination, and addresses both the distinction between the rescission of obligations and the termination of legal business, as well as the distinctive notes existing between the action pauliana (Article 1111 CC) and the bankruptcy rescission action.

(a) Rescission of an obligation and termination of the integrity of the legal business.

The general regime of the rescission established in the Civil Code admits both the rescission of legal business (Article 1,291 CC), and of singular obligations (Articles 1073 CC and 1292 CC). The consequences of both rescissions can not be the same, since otherwise the distinction between the two categories would not be justified. If the consequence of the rescission of contracts is the reciprocal return of things with their fruits, and the price with their interests (Article 1,295 CC); The consequence of the rescission of the obligations must be the unilateral refund of the specific service terminated.

The Bankruptcy Law, on the other hand, refers to “acts” as an object of rescission (Article 71.1 LC), and difference between refinancing agreements that may be subject to termination, of “business, acts and payments, any be the nature and form in which they were realized “(article 7.1 bis.1 LC), for what seems to exist a legal differentiation between the two concepts. The rescission consequences must, therefore, be different for each category, the termination of the act will suppose the restitution of the benefit object of the act, and the rescission of the integrity of the legal business, the restitution of what each party would have received. However, the letter of art. 73 LC provokes certain ambiguity when it refers to “that the judgment that estimates the action will declare the ineffectiveness of the impugned act and will condemn the restitution of benefits”; although it speaks of an impugned act, it uses the plural to refer to the benefits, which could be interpreted as the mandate of mutual restitution of the benefits proper to the rescission of a bilateral legal transaction.

The High Court invokes its previous Judgment 629/2012 that deals with the bankruptcy rescission of acts of disposition that entail a detriment to the active mass, which can not be equated with the rescission of the entire legal business, with the following words:

The appellant confuses the effects derived from the rescission of a bilateral business, with the effects of the rescission of the unilateral act that involves the payment or fulfillment of one of the considerations of the business. What was the subject of the rescission action was not the contract or business but the act of payment of the beneficiary of the repair and technical assistance service.

The forecast contained in section 3 of art. 73 LC (“The right to the benefit that results in favor of any of the defendants as a result of the rescission will be considered a credit against the estate, which must be satisfied simultaneously with the reintegration of the assets and rights subject to the terminated act, unless the judgment finds bad faith in the creditor, in which case it will be considered a subordinated insolvency loan “), invoked by the appellant as infringed, it presupposes that, pursuant to section 1, which regulates the effects of the termination of the contested act, condemned “to the restitution of the services object of that one, with its fruits and interests”.

If the bilateral contract had been terminated, in that case, its supervening inefficiency would have brought with it this effect of restitution of both benefits, but the termination of an act of unilateral disposition, such as payment, does not entail the ineffectiveness of the business from which it was born. the payment obligation that is intended to be satisfied with the challenged act. Hence, the termination affects only the payment, arising for the recipient of the money paid the obligation to return it, with interest, without losing his right to credit, which is prior to the opening of the contest is considered bankruptcy and it must be recognized by the relevant channel. And, consequently, since Art. 73.3 LC, there is also no bad faith in the recipient of the payment for the purpose of subordinating his credit.

For the reasons stated in this Judgment, it will be in the interest of the estate to rescind the harmful act and not the entire legal transaction. Although in both cases the third party must be reimbursed in the form of a credit, in the case of rescission of the legal transaction, said credit will be charged to the active estate, but in the event of a specific termination of the detrimental act in the form of a right of ordinary bankruptcy credit, if the legal business took place prior to the declaration of insolvency, the credit will be bankrupt, and – as the Judgment points out – it must be recognized by the appropriate mean.

And if the Bankruptcy Administration agrees to exercise rescission actions on singular acts harmful to the estate, and not on the entire legal business in which they are framed; the party against whom the reintegration action is directed should exercise the appropriate counterclaim requesting that, in case the rescission action is considered, the integrity of the legal transaction is declared by the court rescinded, with which the reciprocal reintegration will be considered credit against the estate, unless the Court judges the existence of bad faith, in which case the credit must be classified as a subordinated credit.

(b) Termination effects before third parties

The aforementioned sentence makes a doctrinal statement on the difference of the rescission effects derived, respectively, from the Paulian action – which has limited inter partes effects – and from the insolvency reintegration actions – that have erga omnes effects.

Indeed, the effects of the Actio Pauliana consist in the access of the creditor who invokes it to the assets that left unduly the debtor’s assets; but not in the reintegration of those to the patrimony of the debtor; Therefore, no other creditor can benefit from the restitution of the assets that must never be withdrawn. However, the rescission actions have full effectiveness before third parties, because the assets that unduly left the assets of the insolvent, will be reinstated to this – converted into active assets – for the benefit of all creditors.

In light of this important distinction, the Supreme Court suggests that if the Insolvency Administration had brought a Paulista action, instead of a reintegration action, the insolvency proceedings would have had access to the real estate that went into fraud by creditors of the company’s assets. bankrupt since its effects are not reintegrative – which would mean the dissociation between the split and its translatory effect – but simply enable the creditor (the active mass) to access assets that respond to the fulfillment of the obligations of the insolvent party (Article 1911 DC).

In such a way that the bankruptcy rescission of the split can not be urged without wanting to be ineffective.

On the contrary, as we will see in greater detail, it would be possible that, if the split had been made to illegally defraud the right of credit of some existing creditors then, they could exercise an action to claim the satisfaction of their credits with the goods transferred with the split, without having to cancel the split.

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