CAPITAL COMPANIES. Contract freedom between partners.

It is often overlooked that the law allows the partner to establish in the articles of incorporation and the social statutes . “all the pacts and conditions that the founding partners deem appropriate to establish, as long as they are not contrary to the laws and the defining regulatory principles of the chosen social type” (art. 28 TRLSC). The possibility of including pacts and conditions which are the expression of the autonomy of the will means that there is not precise knowledge of the limits of that autonomy of the will, particularly of the defining regulatory principles of a determinate type of company.

The Judgment of the Commercial Court 2 of Bilbao of 10 January 2012 gives a good opportunity to reflect upon these issues. In that judgment are analyzed three agreements of modification of the social statutes of a corporation, that the Commercial Registrar had qualified as inadmissible and, as a consequence, had denied its inscription. The problems raised were the following: a) if it is possible to confer to the chairman of the board the competence to solve issues about the suspension or limitation of political rights, and, particularly, voting rights; b) if it is possible to ban the assignment of voting rights in exchange of patrimonial advantages; c) inability to exercise the voting rights in case of conflict of interest. Without undertaking an examination of the foundation of the judgment, the Court estimates the legality of the board’s agreements modifying the social statutes, making clear that if it is not against the defining regulatory principles of the type of company or against an obligatory rule, the principle of the autonomy of the will should be able to have full effect.