The doctrine of the Supreme Court
See the Judgment of December 13, 2021. Two ladies receive some shares as a legacy. And it is a question of determining whether they are partners since the death of the deceased or other events have to take place for the limited liability company to consider them as partners and allow them to exercise the rights of partner. The Supreme Court says that until the inheritance is liquidated – and the creditors of the inheritance are paid – the legatees cannot be considered as partners.
Article 885 CC reserves to the heir the possession of the property or right object of the legacy: “The legatee cannot occupy by his own authority the thing bequeathed, but must request its delivery and possession to the heir or to the executor, when the latter is authorized to give it”. And the fact is that, by virtue of art. 440 CC, as long as the deceased had it, the possession, in principle, corresponds to the heir, without the legatee being able to obtain it by his own authority, but by virtue of a personal action ex testament, which he can file against the heir or whoever represents the inheritance. The delivery constitutes a complementary requirement for the effectiveness of the legacy, so that the acquisition by the legatee is not effective immediately, but in a mediate way.
The reason why Art. 885 CC prohibits the legatee to occupy by his own authority the thing bequeathed and has to request the delivery of the possession to the heir or executor authorized to give it is twofold. On the one hand, it tries to ensure the transition between the situation of concurrence of a non-possessor owner (the legatee) with a non-owner possessor (the heir or heirs), which occurs in the thing bequeathed from the moment of the death of the deceased, as a consequence of which “the possession of the hereditary goods is understood to be transmitted to the heir without interruption and from the moment of the death of the deceased, in the event that the inheritance comes to be acquired” ( art. 440, first paragraph, CC ), to another situation in which the aforementioned split between ownership and possession ends with the handing over of possession to the legatee. On the other hand, there is a second reason that is reflected in Art. 1025 CC, when it provides that “during the formation of the inventory and the term for deliberation, the legatees cannot demand the payment of their legacies”. This is a provision that is linked to the affectation of the whole estate, during the pendency of the acceptance and division of the inheritance, to the principle of patrimonial responsibility of Art. 1911 CC, with respect to the debts of the deceased, and to the limitation imposed on the freedom of testament by the legal regime of the legitimate shares in the Common Civil Law (Arts. 817 to 820 CC). This legal basis translates into a subordination of the right of the legatees, both those of specific and determined things and those of an aliquot part of the inheritance (here there is a coincidence of the legal regime between one and the other type of legacy), to the prior payment of the debts of the deceased and of the legitimate portion corresponding to each of the forced heirs. And as a measure to guarantee the preferential right of the creditors to collect and the principle of intangibility of the legitimate rights, it is necessary that, prior to the payment or delivery of the legacies, the corresponding operations of inventory and liquidation (of debts) are carried out and, if applicable, the partition of the inheritance (including, if necessary, the division of the inheritance), partition of the inheritance (including, in addition to the inventory, the appraisal of the assets and rights, the collation, imputation, reciprocal payment of the income and fruits that each of the co-heirs has received from the inherited assets, and, if applicable, the division and adjudication of assets).
And, finally, the Supreme Court argues that the inscription in the registry book is a requirement of legitimization of the partner.
If we stick to the fact that the object of the bequest was some shares of a limited liability company, in addition to what has been said about their acquisition in accordance with art. 882 CC, it must be taken into account that for the exercise of the partner’s rights only the person registered in the register book of partners is entitled to do so ( art. 104.2 LSC), although the Law also allows the acquirer of the shares in full or limited title to exercise the rights of a shareholder against the company as soon as the latter becomes aware of the transfer or creation of the encumbrance (art. 106.2 LSC). These two rules must be interpreted jointly. In order for the transfer of the shares to have effects against the company, both the knowledge of the latter and the express or tacit request for registration in the book by the acquirer, who has the power and the burden of communicating the transfer to the company, are required. This implies that the acquirer, in principle, cannot demand the exercise of his rights without requesting their registration, because, conversely, the company must control the regularity of the transfer.
This Supreme Court doctrine has been criticized by the authors. See
- Does the legatee of specific social shares or participations immediately acquire the status of partner? Angel Carrasco
- El cuestionado “status” del legatario de participaciones sociales antes de la entrega (The questioned “status” of the legatee of shares before the delivery), Eduardo Hijas
- Legado de participaciones sociales y adquisición de la condición de socio (comentario crítico a la sentencia del tribunal supremo 862/2021, de 13 de diciembre, RdS 2022 Núm. 65 (2022) Guillermo Alcover Garau
Who is right?
1st Should the legatee of shares be considered a legatee of a thing certain within the meaning of art. 882 CC? Is the greater ‘reification’ of shares – they can be incorporated into securities – than shares relevant?
2º Is Carrasco’s interpretation of the meaning of the possession of the heir ex art. 882 CC correct?
3º What risks are run if the company considers the legatees as partners against the presentation of the will where the legacy is contained?
4º Is what the Supreme Court says about the legitimating effectiveness of the registry book correct?
5º Who should the partnership consider as partner – for the purpose of participating in the partnership – if the deceased partner has died and, according to the Supreme Court, the legatees are not yet partners?