The Wrocław District Court stressed that the failure to give adequate consent in the form of a resolution of the general meeting of shareholders did not affect the validity of the legal act performed with the relatives of persons indicated in Article 15 Code of Commercial Companies.
District Court in Wrocław in judgment of 4 June 2020 (reference no. XII C 1791/18, Legalis No 2396166, hereafter as ‘Wroclaw’) decided on a case where a very interesting question concerning the validity of the legal acts referred to in Article 15 Act of 15 September 2000 (Journal of Laws, item 1037, t.j. Journal of Laws of 2019, item 505, hereinafter referred to as ‘k.s.h.’).
The problem that the court was concerned with was the question of responsibility second of debtors who were married to a member of the board of directors simultaneously first debtor
Background
A joint-stock company with its registered office in Wrocław (hereinafter ‘the Company’) is a lawsuit based on Article 840(1) Act of 17 November 1964 (Journal of Laws, item 296) k.p.c.
demanded that the enforceable title in the form of a notarial act, in which the company was executed from the ratio of the guarantee provided by the order of the District Court in Wrocław, be deprived in full of its feasibility.
In the statement of reasons for the request, the plaintiff argued that the guarantee provided by the company which was the basis for the execution by notarial act was invalid. Company in 2017 has guaranteed the defendant for two debtors a debt resulting from the loan agreement.
At the time of granting the guarantee one the personal debtor served as a member of the company's guaranteeing board, while second the debtor was the spouse first a debtor who has not held any office in the company. The debtors as spouses shared wealth.
According to the agreement, the loans were to be jointly and severally liable for their commitment. An important circumstance is the fact that the general meeting of the shareholders of the claimant company has not adopted a resolution agreeing to the guarantee of the debt in a way Article 15 k.s.h.
Obligation to obtain the consent of a meeting of shareholders or a general meeting of shareholders – interpretation doubts
Article 15 kr.h. is a kind of control and supervision power granted to shareholders of a capital company[1]. The above mentioned provision primarily serves as a protective function directly towards the company, and indirectly also towards its shareholders, its surroundings, including its creditors[2]. According to Article 15(1) k.s.h.
the conclusion by the capital company of a loan, loan, guarantee or other similar agreement with a member of the board, supervisory board, review committee, proxy, liquidator or any of these persons requires the consent of a meeting of shareholders or a general meeting unless otherwise provided by the law. Article 17(1) k.s.h.
provides, however, that if the act requires a resolution by shareholders or a general meeting or supervisory board to carry out a legal act without the required resolution. Note that Article 15(1) k.s.h. does not concern only contracts concluded ‘with’ but also ‘for’ the persons mentioned in the above-mentioned provision.
This applies in particular to the contracts indicated in Article 392 k.c. (service contracts for a person third), guarantees and other similar contracts (e.g. guarantees, letters of credit, etc.) that are concluded between a person third a the company, but the beneficiary of which is the entity indicated in Article 15(1) k.s.h.
However, there is also a view in the doctrine that the term “for” should be interpreted more broadly, by which Article 15 k.s.h.
should also be used where the contract does not have a contract design for the benefit of a person third, if only an official of the company is the actual beneficiary of the company, even though the contract has been formally concluded with another entity, e.g.
with a capital company in which the official is the sole shareholder or even with the spouse of the officer with whom the officer remains in the marital union system (cf. Rodzynkiewicz, KSH Commentary, 2005, p. 42; A. Szajkowski, M. Tarska, in: Sołtysiński and Others, KSH Commentary, t. 1, 2006, p.
261; Litvinska-Werner, Comment KSH, 2005, p. 198)[3].
Article 15 k.s.h. should be interpreted strictly
The Wrocław District Court decided in its judgment that the action should be taken only in a small part. It was clear to the court that the enforceable title was not enforceable for that debtor, who was a member of the management board at the time of the guarantee.
As indicated above, the general meeting of shareholders did not give its consent in the form of a resolution in the manner indicated above. Article 15(1) k.s.h. to conclude a guarantee agreement with the defendant.
In such a situation, the conclusion of the guarantee agreement in the part relating to the debtor serving as a member of the Management Board of the Company should certainly be considered invalid.
The problem that the court was concerned with was the question of responsibility second of debtors who were married to a member of the board of directors simultaneously first a debtor.
The Court rightly stressed that the provision Article 15(1) k.s.h. is an exception to the principle of the ability of a capital company to carry out legal activities[4] and as an exception should be interpreted strictly. Provision Article 15(1) k.s.h.
shall indicate in a precise manner the entities with which or for which the action is to be carried out which requires the approval of the general meeting, the consent to act shall apply only to those entities.
This provision shall not cover former members of the Management Board or other persons in any legal or factual manner related to the persons referred to in that provision.
Therefore, it does not matter that the debtors, in accordance with the terms of the loan agreement, were jointly and severally liable and that at the time of the conclusion of the contracts they were bound by the statutory property union.
In the judgment of the court in accordance with the loan agreement, the borrowers jointly and severally committed to repay the loan, each of which had independent legal capacity.
Furthermore, in order to assess the obligation to repay the loan, it does not matter that part of the assets which the borrowers had been entitled to were covered by the marital property union.
In the case of matrimonial property union, we are dealing solely with a common subject of law, each of the spouses is a separate entity having its own legal entity, its own capacity to enter into obligations, regardless of which asset that liability will be assigned.
In the case of matrimonial property union, spouses are separate entities of the common law having, in addition to common rights, personal property.
The above-mentioned judgment of the court and its argument clearly highlight the exceptional nature Article 15 k.s.h.
However, the above-mentioned case is also a warning to all creditors who, inter alia, conclude a guarantee agreement with the creditor – the company should verify in each case whether the relevant consent referred to in Article has been given. Article 15(1) k.s.h.
The creditor does not have to fear the restrictions imposed solely by the terms of the contract or the statutes of the company, since the acts carried out in violation of those provisions will not be affected by the penalty of invalidity.
[1]Commercial Companies Code. Commentary, Jacek Bieniak, Dr. Michał Bieniak, Dr. Grzegorz Nita-Jagielski, Prof. Dr. Hab. Krzysztof Oplustil, Robert Pabis, Dr. Anna Rachwał, Dr. Hab. Marcin Spyra, Dr. Grzegorz Suliński, Dr. Marcin Tofel, Małgorzata Wawer, Prof. Dr. Hab. Robert Zawłocki, Legalis 2020
[2]Ibid
[3] Commercial Companies Code. Commentary, Zbigniew Jara, Legalis 2020
[4] J. P. Navorski (in:), Commercial Companies Code. Comment. Red. R. Poszt, Warsaw 2011, comment on Article 15 k.s.h.
Written by Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 related to Russell Bedford Dmowski and Associates Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He conducts the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.