Under the rule Article 282(1) dd. 2 the property commercial company code may be disposed of by public auction, and at a free-of-charge only by the shareholders' resolution and at a price not lower than that adopted by the shareholders.
This provision points to the need to sell the property using a public auction institution without determining how the bidding should be carried out. It seems that the legislator's intention was to make it possible to apply the Article. 776 NPCs governing the sale of immovable property in the course of an enforcement procedure or an unlimited public tender (Article 70 1 –70 4 KC). In the context of auctioning in doctrine, there is a broad view of the appropriateness of applying the rules on open public tender.
The doctrine predominates the view that the consent of shareholders to sell freely should be expressed in a resolution which requires the form of a notarial act. The adoption of a resolution by the partners does not require an assembly of partners.
It is permissible for partners to consent to the sale of the free-hand mode Article 227(2) KSH.
The case law also allows the shareholders to give their consent by making statements by all partners directly when concluding a sales contract, which will be equivalent to a “understanding resolution”, in accordance with the Supreme Court judgment of 18 February 2016, II CSK 241/15.
Consequences of the lack of a resolution containing approval to sell
In the doctrine of commercial law, different opinions are expressed on the consequences of the lack of the said resolution in relation to content Article 283(3) k.s.h.
It should be indicated that the additional requirements contained in Article 282 concerning the sale agreement of the real estate by the liquidator, it is likely that they have not been excluded due to the envisaged in Article 283(3) k.s.h. protection of persons third acting in good faith.
Under that provision, to individuals third good faith actions taken by liquidators shall be regarded as winding-up operations. Persons third they enjoy protection only within the limits set out in that provision and, therefore, as to whether the action taken with the liquidator was a liquidation operation.
This provision refers to the actions of liquidators which go beyond the limits of their competence as defined in Article 283(1) k.s.h.
The protection resulting from this regulation does not apply to the additional requirements of the validity of a particular liquidation operation, and in particular to the disposal of immovable property in liquidation proceedings, since such an operation falls within the scope of liquidation operations, within the limits of the powers of liquidators.
Regulations Article 282(1) dd. 3 k.s.h.
the restrictions on the freedom of liquidators, manifested inter alia by the need for them to obtain consent, expressed in the resolution of the general meeting, to ensure that the disposal of the property takes place freely and that the consequences of the failure to do so do not constitute the consequences for limited liability companies regulated in Article 283(3) k.s.h.
Such a regulation containing a sanction on the sale of immovable property without a corresponding resolution of shareholders or at a price lower than that specified by that resolution shall specify the norm Article 17(1) k.s.h.
Moment of consent to the sale of real estate
The consent of the shareholders may be expressed before or after the submission of a declaration by the company, but no later than the time limit two months from the date on which the company made the declaration.
The confirmation expressed after the declaration has been made is sanitized and has been retroactive since the legal act (Article 17(2) k.s.h).
The doctrine of commercial law and the judicature of the Supreme Court present different views on the sanctions to be applied to a legal act carried out on behalf of a legal person without the required consent of the internal body of that legal person.
However, the view should be supported that the sale of the property free-hand without the consent of the shareholders expressed in the form of a resolution before the conclusion of the contract does not result in absolute nullity of legal acts.
Consent of the shareholders to dispose of the property may also be expressed during the two months after the conclusion of the contract (Article 17(2) KSH). Only the lack of consent or the refusal to approve the activities of the partners will render the legal act invalid. The consent will be retroactive from the date of the transaction.
Written by Maciej Tuszyński
Legal Manager in the Legal Department. Lawyer, member of the District Bar Council in Warsaw, graduate of the Faculty of Law and Administration of the University of Warsaw. He specializes in commercial and civil law law. He has professional experience, which includes litigation and comprehensive legal advice on the day-to-day service of economic operators, in particular commercial law companies. As part of his work at the law firm, his practice focuses on corporate, civil and economic matters.