THE SUPREME COURT: THE STATUTORY PROHIBITION ON THE ALIENATION OF A SHARE IN AN LLC IS UNCONDITIONAL

A participant of the company filed a lawsuit against other participants, demanding to invalidate the contract of purchase and sale of a part of the share by the majority participant to third parties. In substantiation of the claims, the plaintiff pointed out that the plaintiff, the defendant (the majority participant) was directly involved in the company, and another participant was also present.

The defendant sent an offer to other members of the company to buy out part of his share in order to exercise their pre-emptive right.

The plaintiff and the third party refused to buy out part of the defendant's share, and also refused to give consent to alienate it in favor of third parties. However, the defendant still alienated part of the share, despite the existence of a statutory prohibition.

The courts of three instances refused to satisfy the claim, referring to the fact that the disputed alienation did not violate the balance of interests of the plaintiff and the third party, on the one hand, and the defendant, on the other.

In addition, the courts questioned the legality of the provision of the charter, which creates an indefinite ban on the alienation of shares in the company in favor of third parties.

The Supreme Court of the Russian Federation canceled judicial acts, pointing out that an indefinite ban or the need to obtain consent for the alienation of a share (stock) is balanced by the right to withdraw from the company in case of refusal of consent or if there is a ban on alienation. However, at the same time, from the point of view of the balance of interests, a ban (the need to obtain consent) is permissible the right to alienate a share within a reasonable short-term period (for example, an economically predictable payback period or a technology development period) in the absence of the right to withdraw (the right to require the company to acquire a share) of the participant affected by such restrictions.

The court noted that the disputable provision of the charter did not violate the legislative requirements and the balance of interests of the participants, since it provided for the company's obligation to redeem the share if the other participants refused to redeem it and in the absence of their consent to alienate such a share in favor of third parties.

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