The Resolution issued on November 4 by the Directorate General of Registries and Notaries (DGRN) addresses the possibility that, as a result of a capital reduction with return of contributions in a SL, the partners may agree that the sums of money to be returned to the partners are subject to deferral.
The case involves a limited liability company with three partners who, at a general meeting, agreed to reduce their share capital by returning contributions to one of the partners in order to facilitate the departure of that partner. This return of contributions was agreed to be carried out through: i) the transfer of real estate, ii) the payment of a sum of money prior to the signing of the deed, and iii) the payment of a sum of money to be made at a later date. This agreement was adopted unanimously by all partners, including, of course, the beneficiary of the aforementioned reimbursements.
The Commercial Registrar who reviewed the deed refused to register it, understanding that a capital reduction whose execution was postponed, even if only partially, with respect to the restitution of the amounts to the partner could not be registered, because he understood that this agreement was contrary to the provisions of Article 201.3 1º of the Commercial Registry Regulations, which literally states:
“3. When the purpose of the capital reduction was the restitution of contributions, the deed shall also include:
- or the description of the goods to be delivered to the partners, as well as the declaration by the grantors that the corresponding reimbursements have been made.”
In the aforementioned Resolution, the DGRN resolves the matter by upholding the appeal and considering the return of contributions registrable through the recognition of a credit right in favor of the partner, to be paid in installments.
To reach this conclusion, after explaining that these regulatory norms articulate the guarantees in favor of the company's creditors arising from the risk that the reduction of the assets linked to the share capital entails for them (basically the temporary joint and several liability of the reimbursing shareholders together with the company up to the amount of the sums received), and that precisely for this protection to be effective, the perfect identification of the beneficiary shareholders and the sums received by them is required, it establishes that the deferral of payment of a part of the repayments does not jeopardize these guarantees, stating that:
“The risk of harm to company creditors does not exist, since the deferral of payment of the sum of money to be received by the shareholder who consented to it is, with respect to creditors, a ‘res inter alios acta’ (see Article 1257 of the Civil Code). Furthermore, for the purposes of Articles 331 of the Capital Companies Law and 201.3.1 and 202.3 of the Commercial Registry Regulations, it must be understood that, with regard to the portion of the value of the contributions whose payment has been deferred, the restitution has already been made through the recognition of the shareholder's claim—for said deferral—against the company; a claim which in no case will enjoy the protection established in Articles 331 and 332 of the Capital Companies Law nor will it have priority over the company creditors referred to in those legal provisions. It is not that the execution of the reduction agreement has been deferred, as the registrar states in its rating, but that such an agreement has already been executed through the recognitionof a monetary credit in favor of the partner whose shares are being redeemed.”
And with respect to the fact that the postponement of payment of the sums returned constitutes a res inter alios acta it states the following:
“In the present case, no problem arises regarding the protection of the partners' interests due to the fact that only the value of the contributions of one of the three partners is returned, nor regarding the non-monetary nature of part of the restitution, since the reduction agreement was adopted unanimously by the partners. However, precisely this unanimity and the aforementioned considerations regarding the principle of freedom of contract (see also Article 1255 of the Civil Code) also lead to the rejection of the objection raised by the registrar in the challenged ruling regarding the deferral of part of the sum of money to be delivered to the partner, since there is no mandatory rule requiring the immediate payment of the value of the contribution returned to the partner through the reduction of share capital. The obligation to pay the reimbursement credit arising from the reduction agreement is a monetary obligation (Article 1170 of the Civil Code), which allows for deferral by agreement of the parties. Therefore, in a case such as this, for the purposes of the provisions of Article 201.3.1 of the Commercial Registry Regulations, the declaration of the grantor of the deed regarding the restitution of the value of the contributions and the deferral of part of them must be considered sufficient, a fact which must be reflected in the registration in accordance with article 202.3 of the same Regulations.”
In conclusion, the DGRN considers that this deferral is lawful and in accordance with the law because: a) it does not harm the creditors given that their guarantees against the reimbursing partner are not diminished, b) it also does not harm the affected partner since he freely consented to this deferral and c) the requirements of article 201.3.1º of the Commercial Registry Regulation must be considered fulfilled, since the agreement is executed from the moment in which the recognition of a monetary credit right in favor of the partner occurs, a circumstance that is equivalent to the effective restitution.
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A graduate in Law from the University of Barcelona and with a Master's degree in Business Law from the same university, he worked at the law firm Alonso-Cuevillas Advocats and later joined the Civil and Commercial Litigation department of the law firm Bufete Bueno Bartrina. He then joined the team at the firm Casamitjana-Cuyas-Morales, and subsequently continued his career at Bufete Herrera Advocats, in the Commercial and Litigation department. In November 2015, he joined aÀmbitJurídic i Econòmic, SLP, as a professional partner, to head the Commercial and Insolvency practice.
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