The Directorate General for Legal Certainty and Public Faith confirms that an amendment to the articles of association granting the pledgee the rights of a shareholder (such as dividends) solely upon the commencement of enforcement proceedings cannot be registered in the Mercantile Registry (Facts I). The registrar determined that this violates the nature of a pledge as a mere security right and the requirement that any transfer of assets must be based on legal cause (Legal Grounds). Civil fruits, such as dividends, belong to the pledging owner until the expropriation of the asset occurs (Arts 1869 and 354 of the Civil Code).
For companies using the pledge of shares as collateral, statutory clauses attempting to automatically transfer economic rights to the creditor upon default will be rejected by the Mercantile Registry. Creditors cannot appropriate fruits (dividends) or accessory rights (liquidation quotas) solely by virtue of their status as creditors, as this would constitute unjust enrichment without legal cause (Legal Grounds). Standing before the company must be limited to the receipt of rights without prejudging the effective ownership of the assets (Art 1162 of the Civil Code).
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