"NEWS of September 7, 2016-the consensus of the partners in transforming regressive"

Posted by on Sep 7, 2016

Under article 1, part 2, section 2500-sexies of the civil code, for the purpose of transformation of the limited liability companies in partnership, is in any case required the consent of the shareholders that, as a result of the operation, assume unlimited liability. From a legal point of view, the consensus in question must be regarded as a unilateral act of disposition of a subjective right, namely the right to limited partner.  However, the most important issue concerns the relevance of the Member's consent, since it is believed that it constitutes an essential requirement which might affect the validity of the resolution of transformation, but is rather a condition of effectiveness thereof. Such a reading is married by the belief that the resolution approved by a majority of transformation without the consent of one or more shareholders who will assume unlimited liability in society transformed, is perfectly valid but ineffective, resulting in unnecessary from a practical point of view. On the basis of the various types of company that can be transformed into partnership, the owners of the right to give their consent for processing (as a condition of effectiveness) are as follows:

  • in the transformation from Corporation or limited liability company in general partnership company, consent must be provided by all members, because in the society transformed unlimited liability is assumed by all members;
  • in the transformation from limited liability companies (joint stock company or limited liability company) in partnership, consent must be provided by all members, except those on behalf of whom you establish a covenantal limitation of liability;
  • in the transformation from limited liability companies (joint stock company or limited liability company) in limited partnership companies, consent must be provided by all members set to become general partners (which as such assume unlimited liability for social bonds).

Established the effects of consent of the partners who assume unlimited liability following the resolution of transformation, you now need to understand when the Member concerned must give its consent.

Place that the natural place seems undoubtedly transform resolution, no obstacle seems to come the ability to provide such consent both before and after the decision, though on this point there is a need for some considerations. Regarding the "natural" hypothesis of consensus in the meeting, the same should be considered implicit in the expression by voting in favour of the resolution.

As regards the possibility of giving your consent even later than the deliberation of transformation, the doctrine has observed that it seems possible to transform even when the Member is absent, or is present but Word would vote against or abstain. That might be the case when it is considered possible to overcome within a short time the initial concerns of the Member or his opposition to the resolution. Cleared the ability to give consent even after the adoption of the resolution, there is still the question of what is the maximum time limit within which a member must still be expressed. On this point, the doctrine has identified two possible solutions:

  • the first view that the consensus should be paid before requesting, recording notary, registration of the resolution at the companies register, and then within 30 days of the resolution (Civil Code article 2436). Within that period, then the notary which detects the lack of consent on the part of one or more members who assume unlimited liability, must notify administrators, who will have to convene the Assembly for appropriate steps within the 30 days (in accordance with article 2436, paragraph 3, civil code). In such a case an appeal to the Court would not get any effect because the refusal of the notary to proceed with the registration of the decision in the register of companies depends on an objective lack of an element required for registration of the resolution;
  • the second that, assuming that the inscription in the register of companies of a decision lacking consensus from members who assume unlimited liability has no effect, the deadline to give consent is the same as for exercising the right of withdrawal, and therefore within 15 days from registration to resolution that legitimises for public limited companies, and within the period specified in the Statute for the limited liability company (for these companies is not in fact expected normatively a condition for exercising the right of withdrawal, and then the Statute must fill that gap).

by Sandro Cerato