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Business Duty Officer

The only member of the company can challenge transactions, committed before the purchase of the business. New position of the Supreme Court of the Russian Federation

The only member of the company can challenge transactions, committed before the purchase of the business. New position of the Supreme Court of the Russian Federation

The company has entered into a service agreement with another legal entity. Later, the customer transferred to the contractor under the first contract the rights of claim under the assignment. Also, the parties soon entered into an agreement on the offset of homogeneous counterclaims.

Assuming, that the cession agreement and the set-off agreement are invalid transactions, because they were committed in the absence of the necessary corporate approval, causing damage to society, the plaintiff applied to the court with demands for the recognition of transactions as invalid and for the application of the consequences of their invalidity.

Courts of three instances denied the plaintiff, since he filed claims not on behalf of and in defense of the interests of society, but to society itself, as a defendant. The plaintiff also does not have the right to challenge them on corporate grounds., since at the time of the conclusion of the transactions he was not a member of the company. Water, referring to the clarification, set out in paragraph 9 resolutions of the Plenum of the Supreme Court of the Russian Federation dated 26.06.2018 N 27 “On contesting major transactions and transactions, in which there is an interest” (next – Resolution of the Plenum N 27), concluded, that there are no grounds for declaring transactions invalid, because they did not go beyond the normal business activities of the company. The lower courts concluded, that the fact of causing harm to the interests of the company as a result of the conclusion of transactions has not been proven, vice versa, the company received a property benefit as a result of offsetting counterclaims.

In addition to this, these conclusions of the courts cannot be recognized as complying with the requirements of the law, based on the evidence in the case file.

In accordance with the paragraph of the article 46 of the Law on Companies, a major transaction is considered to be a transaction (several related transactions), out of the normal course of business. Under deals, not outside the ordinary course of business, any transactions are understood, which are adopted in the activities of the relevant company or other business entities, carrying out similar activities, regardless of, whether such transactions were made by such a company before, if such transactions do not lead to the termination of the company's activities or a change in its type or a significant change in its scope (point 8 articles 46 Law on Societies).

The Supreme Court of the Russian Federation did not agree with the arguments of the courts and sent the case for a new trial., arguing this with: that party, suing a legal entity, acts not only in their own interests, but also in the interests of society itself. In this regard, that circumstance, that, as of the date of conclusion of the disputed transactions, the plaintiff, sued on behalf of society, was not a member of the society, could not serve as a basis for refusing to satisfy the claim (subparagraph 2 item 7 resolutions of the Plenum N 27). From the moment of acquiring the status of the sole participant, the plaintiff received the entire volume of corporate rights, including challenging transactions on behalf of the company.

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