The extent of the obligation of a seller of non-fully paid up shares to pay up in full
Article 5:66 (besloten vennootschap or BV) and 7:77 (naamloze vennootschap or NV) of the Companies and Associations Code (CAC) provide for the joint and several liability of both the transferor and the transferee of non-fully paid up shares to pay up. This statutory provision is of mandatory law and does not allow the parties to contractually stipulate otherwise. The transferor is released from this joint and several liability only after five years have elapsed since the (opposability of the) transfer. If the transferor is held liable, he does have a recourse claim against the transferee (unless contractually stipulated otherwise). The liability consists in a liability for the amount for which the shares were not paid up, regardless of when the company’s debts arose.
However, the provisions of the CAC only apply to transfers that took place after the entry into force of the CAC (January 1, 2020, or May 1, 2019 for companies incorporated after that date or existing companies that expressly opted for an earlier entry into force). If the transfer took place before the entry into force of the CAC, the liability of the transferor will have to be assessed under the old Companies Code (e.g. also in case of bankruptcy after the entry into force).
Under the (old) Companies Code, the payment obligation of the transferor of non-fully paid-up shares extends only to debts existing at the time the transfer of the shares is enforceable, but not to debts arising thereafter. Again, the transferor has a recourse claim against the transferee (unless otherwise contractually stipulated).
For the naamloze vennootschap (NV), there was an explicit legal provision to this effect (article 507 (old) Companies Code). For the besloten vennootschap (BVBA), in the absence of a statutory provision, there was a great deal of discussion in case law and legal doctrine concerning the extent of the obligation of the transferor of non-paid-up shares.[1] This discussion was settled as aforementioned by the Hof van Cassatie in its judgment of October 9, 2020[2], reaffirmed in a judgment of September 2, 2022[3]. The Hof van Cassatie went against the then majority opinion, defending the position of full discharge of the transferor of non-fully paid-up shares in the besloten vennootschap (BVBA).
Making the obligation to pay up the shares dependent on when a company’s debts arose is not always logical. In the event of bankruptcy, the payment ends up in the bankrupt’s assets (de failliete boedel). The rules of concurrence then apply. As a result, the full payment of the shares will not always be used to pay only debts arising before the opposability of the transfer of the shares.[4]
Anneleen Steeno, intui attorney
[1] A. STEENO, “Overdracht van niet-volgestorte aandelen in de BVBA: het Hof van Cassatie bevestigt zijn arrest van 9 oktober 2020 en de keuze voor partiële gehoudenheid van de overdrager” (noot onder Cass. 2 september 2022), TRV-RPS 2023, 176-177; A. STEENO, “Overdracht van niet-volgestorte aandelen in de BVBA: het bochtenwerk van het Hof van Cassatie” (noot onder Cass. 9 oktober 2020), TRV-RPS 2021, 952-956.
[2] Cass. 9 oktober 2020, AR C.17.0601.N.
[3] Cass. 2 september 2022, AR C.22.0002.N.
[4] For further explanation, see margin number 8 in A. STEENO, “Overdracht van niet-volgestorte aandelen in de BVBA: het bochtenwerk van het Hof van Cassatie” (noot onder Cass. 9 oktober 2020), TRV-RPS 2021, 952-956.
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