Why should Restrictive Clauses be applicable in Cases of Forced Selling of Limited Liability Company Shares?

1 Professor of Commercial Law at the Universidad Autonoma, Madrid, Spain; PhD University of Bologna, Italy; Alexander von Humboldt Stiftung Scholar. This study was conducted under the research project headed by Prof. Dr.Paz- Ares, “Derecho Mercantil y análisis económico del Derecho IV”, funded by the Spanish Ministry of Education and Science (Ref. SEJ2005-07030/JURI).

Résumé

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English

In many European countries, one of the most complex and widely discussed issues addressed by legal systems with respect to forced selling of limited liability and public limited company shares is the impact of possible statutory restrictions on transfers . Thus, while some authors deny the applicability of such provisions (as a possible avenue for commission of creditor fraud) , others support their validity (on the basis of prevention of possible fraudulent actions affecting interests protected by restrictive causes).

In my opinion, a solution must be found in which prosecution of creditor fraud co-exists with respect for the rights scheme. As a general rule, this solution would call for applicability of restrictive clauses to cases of forced selling, regardless of whether such statutory provisions are viewed in terms of order or alienation.

Citation recommandée

Mauricio Troncoso Reigada, « Why should Restrictive Clauses be applicable in Cases of Forced Selling of Limited Liability Company Shares? », (2009) 14-1 Lex Electronica. En ligne : http://www.lex-electronica.org/s/441.
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