Promise share purchase
What is the time of pricing in a share purchase agreement, taking into account the principles of interpretation of contracts?
The question is not trivial, especially when the long-term contract.
The Supreme Court has solved one of these cases Judgment 25 April 2016.
The Society for the Development of Mining Regions S.A. (hereinafter Sodeco) It took a minority stake in the capital of the company Alas Aluminium S.A. acquiring 15.000 shares for a nominal 100 euros per share. By deed, the defendants were forced to buy such shares Sodeco solidarity and irrespective of their status as a shareholder. This agreement, it was decided that "The purchase price of the shares shall be the result of applying the nominal subscription value for each of the shares purchase, a cumulative annual rate equal to the interbank rate in the euro zone offered for deposits of three months, published by the European Banking Federation, increased in 0,5 percentage points".
In April 2009 we proceeded to make a novation of bilateral promise of purchase of shares 2002, adding new COMMITTING and sureties.
the possibility of increasing the interest rate up to Euribor plus added three points, depending on the value that reaches the net result on average equity and cash flow divided by sales last year.
Also, stipulated that if the actions disappear as a result of the dissolution, liquidation or dissolution of the company, It produced the loss of the thing due to which the article refers 1.156 the C.Civil, COMMITTING Sodeco must pay an amount equal to nominal cumulatively increased every year in the Euribor plus a 0,5%.
The company reduced capital Alas Aluminium, becoming of 1.150.000 EUR 2010.
En febrero de 2011, the bankruptcy is declared Aluminium Wings. Given that fact, Sodeco required the defendants to raise public write the sale of shares and the price payment, calculated 100 euros per share. The defendants opposed considering that it should be at face value 5 euros per share.
The Court of First Instance, partially he upheld the claim and ordered the defendants to grant deed of purchase of 15.000 actions, paying 2.008.047 euros plus legal interest and a penalty of 15.000 euros provided for in the contract. For the Court, It must be the literal interpretation of the clauses agreed.
The defendants filed appeal to the Provincial Court which upheld the arguments of the first instance.
So come to Supreme Court, interposing an extraordinary appeal for procedural infringement (which is rejected) and appeal.
The appeal is based on the infringement of Article 1281.1 the LEC. For recurrent, Sodeco directly involved in the management of society and must assume the risk of the company.
It also denounces the violation of Articles 1285 and 1286 of C. Civil relating to the interpretation of contracts as to the pricing of bonus shares.
For the High Court, interpreting contracts must be performed on the following principles:
1.- The guiding principle is the common intention of the parties, projected onto the entire contract.
2.- The literal interpretation is instrumental, really made conditional on the willingness dear Contracting.
3.- Thirdly should take into account the principles of conservation of contract and contractual good faith.
The judgment makes a correct application of these guidelines.
the allegation of infringement of Article discarded 1288 which provides for the contrary interpretation who caused the darkness, in this case it was who wrote Sodeco contracts. Para la sala, the criterion of art. 1288 It can not be considered in isolation, without applying the other criteria of interpretation. Also, both instances followed the same line of interpretation, so the non-application of the rule "against stipulatorem" is appropriate. And at the same place you get under the rule of good faith, It not questioned in the case of Sodeco.
Ultimately, the actions must be dismissed and the interpretation of the promise of sale made is confirmed by Sodeco, and costs the defendants are imposed.