The Directorate General for Legal Certainty and Public Faith has upheld the Commercial Registrar's refusal to register an amendment to the articles of association of the company «Aldigavia Oficinas, SLU». The clause intended that, upon default of a pledge of shares, the economic rights (such as dividends) would pass to the pledgee creditor following notarial notification and the commencement of enforcement proceedings (Facts I). The Registrar ruled 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 a legal cause (Legal Grounds).
For companies using a pledge of shares as collateral, this resolution limits the ability to stipulate in the articles of association the automatic transfer of economic rights (dividends, liquidation proceeds, etc.) to the creditor solely by virtue of the pledge (Legal Grounds). The creditor cannot appropriate the civil fruits of the pledged asset without an expropriation or a legal cause justifying the transfer of assets, in order to prevent unjust enrichment (Legal Grounds).
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