(Resolution of the Supreme Court dated 3 June 2026, Case No. 27 Cdo 3437/2024)
In this decision, the Supreme Court addressed the question of whether an agreement on the transfer of a share can be validly concluded already in the period between the founding of the limited liability company and its establishment, i.e., even before its entry into the business register.
In the present case, the company was founded by a deed of foundation, while on the same day, the sole founder concluded an agreement with an acquirer on the transfer of a 50% share in the company, before the company factually came into existence. The registry court and subsequently also the appellate court rejected the acquirer’s proposal to change the entry in the business register justifying that the share transfer agreement is absolutely invalid due to the initial impossibility of performance. Namely, according to these courts, it was not possible to transfer the share before the company came into existence and the share, as a thing in the legal sense, even began to exist.
The Supreme Court did not agree with this interpretation of the lower instance courts. It drew attention to the fact that neither professional literature nor current case law doubts that the subject of a contract can also be things that have yet to come into existence. This conclusion also applies to a share in a business corporation, which is from the perspective of private law also considered a thing. The mere fact that the share does not yet exist at the time of the conclusion of the contract and the founder is not yet a member does not cause the invalidity of such a contract due to the initial impossibility of performance.
In such a case, the acquirer becomes the owner of the transferred share precisely at the moment of the establishment of the company, i.e., its entry into the business register, unless a later acquisition of the ownership right was stipulated. Towards the company itself, the legal effects of the transfer then occur at the moment when an effective written agreement with officially verified signatures is delivered to it. Given that in this case the transferor was simultaneously the first executive director of the company, the effectivity of the agreement towards the company occurred immediately as of the day of its establishment.
Legal Update 08/2026 download here.