The Directorate General for Legal Certainty and Public Faith has upheld the Commercial Registrar's refusal to register a statutory amendment for the company "Ortiz Sport Factory, SLU". The clause sought to grant the pledgee creditor shareholder rights (such as dividends) in the event of a default on the secured obligation (Facts I). The Registrar ruled that this violates the nature of a pledge as a mere security right and the requirement that all asset transfers must be supported by legal consideration (Legal Grounds).
For companies using the pledge of shares as collateral, this ruling limits the ability to include statutory provisions for the automatic transfer of economic rights (dividends, liquidation shares, etc.) to the creditor solely by virtue of the pledge (Legal Grounds). To prevent unjust enrichment and the lack of consideration in asset transfers, a creditor cannot appropriate the civil fruits of the pledged asset unless the debtor is expropriated (Legal Grounds).
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