Ancillary obligations for the business partner
Ancillary obligations for the business partner: an obligation or a right?
The client we had quoted today has asked us an interesting question. At the last general meeting of partners, the administrator blamed him for not complying with a series of obligations that imply his status as a partner and that, if he persisted in his attitude, the company could urge the exclusion of him.
“Is this possible when it is false that I do not comply?”, he asks us, “can they fire me for this reason even though I don’t want to?”.
Ancillary obligations
The obligations referred to by the administrator are known as “accessory obligations”. These are constituted as benefits linked to the status of partner that must be carried out for the benefit of the company. The characteristics of accessory obligations have been shaped by jurisprudential doctrine:
- First, they have a statutory nature. That is, they must be determined in the bylaws and cannot be established by a majority agreement in a general meeting that does not modify them.
- They must be established in a concrete and specific way, without their ambiguous nature having to be “interpreted” by the administrative body. Said interpretation could only be given, where appropriate, by the courts of justice.
- They may be obligations to give (such as signing financing policies for the company in certain cases and with certain limits), do (such as providing technical or professional assistance in favor of the company if a partner is a lawyer, economist, etc.) or not doing (activities that may involve competition against the company).
- The valuation of this obligation cannot be considered, in any case, as part of the shareholder’s contribution to the share capital. As their name indicates, they are “accessories” to their status as a partner that they have acquired with the economic subscription of the shares in the company.
- They may be free or onerous in nature, in which case, their gratuity must be specified.
We can assure our client that if the wording of the bylaws is clear in this regard, the company’s administrative body has a difficult time justifying the exclusion of a partner due to voluntary breach by the latter of its ancillary obligations.
Thus, the company has the burden of proof when it comes to demonstrating that the breach of the ancillary obligations of a certain partner is proportional to the fulfillment of those same obligations by the rest of the partners.
Any resolution of the general meeting that agrees the expulsion of the partner for this reason is susceptible to being challenged by the interested party before the courts of justice. p>
Ancillary obligations for the business partner – Jurisprudence
Finally, indicate that the partner also has the right to be excluded from the company with the amortization of their shares if they decide voluntarily strong> failing to comply with said ancillary obligations.
This is how the Supreme Court understood it in its judgment of March 14, 2013. This resolution understands that it may happen that the exercise of accessory benefits is unaffordable in practice for the partner (let’s imagine a technical or professional service that is of such magnitude that it harms your profession or makes you incompatible with it).
If that happens, the partner must have the right to separate from the company (as we already saw in our article “Partner’s right of separation”) and to have their shares in their market value.
Conclusions
In conclusion, the ancillary obligations are intended to constitute a close bond of collaboration between the company and the partners that comprise it.
Now, both parties have to have the possibility of breaking that tie, either because the partner must and does not want to comply with his obligation (right of the company to exclude the partner ) or because the partner must but cannot comply with it (partner’s right to be excluded).
15/03/2018
