Amendment to Article 62 of the Capital Companies Law.
On December 29, 2018, Law 11/2018, of December 28, was published in the BOE, which modifies the Commercial Code, the consolidated text of the Capital Companies Law approved by Royal Legislative Decree 1/2010, of July 2, and Law 22/2015, of July 20, on Auditing of Accounts, in matters of non-financial information and diversity.
Regarding the amendment to the Capital Companies Law (LSC), which came into force on January 1, 2019, several changes were introduced, although in this article we will focus exclusively on the amendment to article 62 of the LSC, relating to cash contributions in the constitution of a SL.
The modification of the aforementioned article has consisted of the introduction of a new section 2 in it, which now reads as follows:
“Article 62 Accreditation of the reality of the contributions
- Before the notary authorizing the deed of incorporation or execution of the increase of the share capital or, in the case of public limited companies, those deeds in which the successive disbursements are recorded, the reality of the monetary contributions must be proven by means of a certificate of the deposit of the corresponding amounts in the name of the company in a credit institution, which the notary will incorporate into the deed, or by delivering them so that the notary can constitute it in the name of the company.
- Notwithstanding the foregoing, it will not be necessary to prove the existence of the monetary contributions in the incorporation of limited liability companies if the founders state in the deed that they will be jointly and severally liable to the company and to the company's creditors for the existence of said contributions
Until the amendment came into force, when in a limited or public limited company, monetary contributions were made to form a company or to increase its share capital, it was essential to prove to the notary authorizing the deed of incorporation or capital increase the reality of the monetary contributions made, by showing a certificate issued by the bank where the company's bank account was open, proving that these monetary contributions had actually been deposited in it and this certificate had to be incorporated into the deed.
With the introduction of the new section 2 of article 62 of the LSC, this general principle is made an exception, opening the possibility that, only in the case of cash contributions for the constitution of a limited company, the accreditation of the reality of these contributions by means of a bank certificate can be dispensed with, replacing that document with a statement from the founding partners to the effect that they have made these contributions, and establishing as a guarantee of this declaration, that they will be jointly and severally liable to the company and its creditors for the reality of these contributions.
Consequently, if a limited company is formed, it will no longer be an essential requirement that, at the time of going to the notary, a bank certificate issued by the bank where the partners have opened an account for the company being formed be shown and delivered to him, proving that the partners have made respective monetary payments as contributions for the formation of the limited company, and that certificate can be replaced by a mere declaration from the same stating that they have made them.
This partial modification of the general regime relating to monetary contributions (which to some extent brings them closer to the regime of non-monetary contributions), represents a further action by the legislator in his (not always achieved) attempt to simplify the procedures required for entrepreneurship.
If you require our assistance to obtain more information or have any questions, please contact us via email at ambit@ambitassessor.com or at our offices.
Do you have any questions about this topic?
Our team of expert advisors will help you resolve any issues related to our services.
Contact us now
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.
Latest posts by Andreu Pujol i Camps
(see all)
Related
