Regime of capital companies: law, bylaws and shareholders’ agreements
In the complex sphere of company law, the regime of capital companies is intrinsically linked to two primary forces: the law and the will of the parties.
In this context, this text addresses with meticulous precision the various aspects that make up the legal structure of corporations, from the importance of the articles of association to the role of shareholders’ agreements.
Regime of capital companies: The positive texts
As in any contract, capital company contracts (or unilateral acts, in the case of a sole proprietorship) are governed by the law and by the will of the parties; or rather, by the will of the parties and by the law.
This is stated in two provisions of the LSC: Article 3, under the heading “Legal Regime”, which states that “Capital companies, insofar as they are not governed by a legal provision that is specifically applicable to them, shall be subject to the provisions of this law”; and Article 28, under the heading “Autonomy”, which states that “Capital companies, insofar as they are not governed by a legal provision that is specifically applicable to them, shall be subject to the provisions of this law”. 28, under the heading “Autonomy of the will”, when it states that “The articles of association and bylaws may also include all the covenants and conditions that the founding partners deem appropriate to establish, provided that they do not oppose the laws or contradict the principles that configure the type of company chosen”.
This second precept is reminiscent of art. 1255 CC, which, as is well known, generally recognizes the freedom of the contracting parties to establish the covenants, clauses and conditions that they deem convenient, provided that they are not contrary to the laws, morals or public order.
Regime of capital companies: the law
It should be noted that the law is the source of regulation of capital companies, but also a limit to the autonomy of the will of the contracting parties.
Precisely for this reason, Article 28 of the LSC, when referring to the laws, refers to the mandatory rules of the system (those of the LSC and others applicable to the activity of the capital company). This brings us to the question, not always easy, of determining, within the scope of each of the types of capital companies, the dispositive or mandatory nature of the applicable rules, but this can be determined in each case and situation.
What are not mandatory rules are the “principles configuring the chosen type of company”. They are not rules, but principles, but as principles they can be inferred from the rules. They are identified with the characteristics or basic structural features of society, which can be inferred from the articles of the Law.
Therefore, although they are not rules, they do not cease to present an accentuated degree of imperativeness in that they are a crystallization of the essential and unalterable typological elements of each of the corporate types to allow the proper identification of each of them in the traffic, thus responding to the legislative policy decision to maintain the taxed nature of the corporate forms, with the ultimate aim of preventing the emergence of atypical organizations that may disrupt the security of the traffic or generate confusion with respect to the applicable law.
Regime of capital companies: the articles of association
There is no doubt that the articles of association are contract law insofar as they derive from the will of the parties (partners). It cannot be forgotten, however, that they are sui generis contract law in two senses: first, because part of their content is imposed by law and the shareholders cannot exclude their incorporation into the bylaws; it is an unavailable content whose non-compliance would render it null and void (mandatory law rules).
Second, because it is a contractual content established on a general and impersonal basis, aimed at governing the life of the company and its application and submission not only to the shareholders who drafted them but also to the shareholders who join after they are founded.
That is to say, as contract law they appear, in any case, subordinate to the legal rules of mandatory law and are binding on the members of the corporation who subscribe to them either at the time of incorporation or when acquiring the position of partner, since we are dealing with an internal law of the corporation.
Regime of capital companies: Parasocial agreements
Shareholders’ agreements are contractual agreements, and therefore form part of the corporate contract together with the agreements included, within the authorized margins, in the corporate bylaws. Article 29 of the LSC refers to them, stating that “Agreements that are kept confidential among the partners shall not be enforceable against the company”.
Parasocial agreements are agreements stipulated among all the partners, among some of them or between partners and administrators outside the corporate contract. They are covenants that are not of a strictly corporate nature, being intended to create a strictly obligatory link between those who sign them.
They are not, therefore, covenants capable of modifying the content or effectiveness of the articles of association, but, on the contrary, they are extra-corporate covenants through which the partners assume certain obligations among themselves or, sometimes, with respect to the company itself or with respect to third parties.
The non-opposability of shareholders’ agreements to the company is based on the autonomy and independence of such agreements from the corporate contract and from the corporate organization itself, and is also a consequence of the general principle of relativity of contracts (art. 1257.1 CC).
Notwithstanding the foregoing, case law has been clarifying the rule of the non-opposability of shareholders’ agreements to the company when the latter is part of the same and is therefore a contracting party, called omnilateral shareholders’ agreements by both the doctrine and case law.
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