Selected aspects of the contract for the transfer of a business share
Keywords:
limited liability company, business share, contract for the transfer of a business share, essential elements of a contract.Abstract
Limited liability company is the most widespread form of a business company in the Slovak Republic. However, it is not possible to withdraw unilaterally from a limited liability company on the basis of the Slovak Commercial Code. Therefore, the most common way to terminate a membership of a shareholder in a company is by transferring a business share either to another shareholder or to a third party. A business share may be transferred on the basis of a contract for the transfer of a business share, which represents a special contractual type regulated by the Commercial Code. However, its legal regulation is very brief, which causes several application problems in the legal practice. The following contribution is dedicated to the contract for the transfer of a business share, its particulars as well as the problems that we encounter in the legal practice in connection with this contract.
References
2 For more details see Section 115 par. 4 of the Commercial Code.
3 For more details see Section 37 of the Commercial Code.
4 Judgment of the Supreme Court of the Slovak Republic of 29 March 2007, File no. 1 Obdo V 88/2005.
5With regard to the originally identical legal regulation in the Slovak and Czech Republic, it is also possible to take into consideration the decisions of Czech courts.
6 The shareholder does not become a participant of the founding document by law, but by an explicit declaration in the contract for the transfer of a business share.
7 See the judgment of the Supreme Court of the Czech Republic of 24 April 2002, File no. 29 Odo 264/2001.
8 Another possibility is a barter of business shares, however, it is not frequent in practice. As the Commercial Code does not contain any special provisions on the barter contract, the relevant provisions of the Civil Code (Section 611) would apply in the event of a barter of business shares.
9 Judgment of the Supreme Court of the Czech Republic of 7 October 1998, File no. 1 Odon 110/97.
10 It follows from the resolution of the Supreme Court of the Czech Republic of 25 February 2015, File no. 29 Cdo 898/2013 that if the subject-matter of a contract on a future contract for the transfer of a business share is to be defined certainly enough, it must already be clear from the contract on a future contract whether the transfer of a business share is to be for consideration or free of charge.
11 Judgment of the Supreme Court of the Slovak Republic, File no. 2 Obo 102/2001.
12 Resolution of the Supreme Court of the Czech Republic of 5 April 2006, File no. 29 Odo 221/2005.
13 Resolution of the Supreme Court of the Czech Republic of 23 June 2015, File no. 29 Cdo 1685/2013.
14 Resolution of the Supreme Court of the Czech Republic of 7 February 2006, File no. 29 Odo 1241/2004.
15 Judgment of the High Court in Prague of 20 December 2005, File no. 7 Cmo 519/2005.
16 Act no. 90/2012 Coll. on Business Corporations and Cooperatives (Business Corporations Act).
17 It also resolved the question whether a declaration of accession to the memorandum of association is an essential element of a contract for the transfer of a business share, even if all the business shares in the company are acquired by one shareholder.
18 See, for example, the judgment of the Supreme Court of the Czech Republic of 26 June 2007, File no. 29 Odo 387/2006.
19 See, for example, Section 56a of the Commercial Code and Section 265 of the Commercial Code.
20 ČECH, P. K (nepsaným) povinnostem společníka společnosti s ručením omezeným aneb potvrzení existence povinnosti loajality společníka v českém právu. Jurisprudence, No. 3, 2006, p. 69.
21 OVEČKOVÁ, O. et al. Obchodný zákonník. Veľký komentár. Bratislava : Wolters Kluwer, 2017, p. 380.
22 Resolution of the High Court in Prague of 1 March 2010, File no. 7 Cmo 269/2009.
23 Judgment of the Supreme Court of the Czech Republic of 26 June 2007, File no. 29 Odo 387/2006.
24 Resolution of the Supreme Court of the Czech Republic of 23 May 2007, File no. 29 Odo 894/2006.
