In the present case subject to the Decision, given that through the claim the plaintiff requested solely the absolute nullity for (i) lack of legal object, (ii) noncompliance with art. 98 of Law no. 31/1990 and (iii) noncompliance with Articles of Association with respect to obtaining the shareholders consent for the transfer of shares, the High Court determined that these are the only grounds for invalidity that can be discussed and analyzed in this file.
Given that art. 58 of Law no. 31/1990 regulates the nullity of the company and, notwithstanding the common law, establishes the principle that this nullity is not retroactive and taking into consideration that the nullity of the company involves the nullity of the company’s Articles of Association, the court considers that the principle established by art. 58 of Law no. 31/1990 target not only the nullity of the company itself but also the nullity of the Articles of Association, which will take effect only for the future.
The same legal regime benefits the documents amending the Articles of incorporation so that their cancellation takes effect only for the future. This solution is justified by the fact that a retroactive application of nullity would endanger the security and stability of legal relations.
In addition, although Law no. 31/1990 does not make explicit reference regarding nullity regime for the modifying documents to the company’s nullity, it does no prevents the application of the principle that effects are produces only for the future in case of nullity of the modifying documents. On the contrary, the identity of reason, as neighboring nature of the two categories of acts (constitutive and modifying) argues convincingly for applying this principle.
In the present case, the Decision aimed to amend the Articles of Association. Therefore, by virtue of the above principles, the annulment of that decision could take effect only for the future. That is, the cancellation in 2011 of the Resolution of the General Extraordinary Meeting of Shareholders did not change at all the facts and nature of the shares at the conclusion of the contract and the contract for sale remains valid.
On the contrary, the company’s shares have maintained the quality of bearer shares throughout the period between the date of adoption of the decision and its cancellation date, including at the time of concluding the contract.
As a consequence, even assuming they could accept the thesis that type of shares (registered / bearer) are relevant to determining the existence of the object of the contract, however in this case would not be covered by absolute nullity of the contract for failure of object, because the carrier shares have maintained this status and existence to the time of concluding the contract.
Moreover, it can not be retained absolute nullity of the contract for lack of object not even from the perspective of the principle resoluto iure dantis resolvitur ius accipientis. Thus, this principle implies the cancelation of the title of a subacquirer if the title of the transmitter is cancelled.