(Resolution of the Supreme Court dated 3 June 2026, Case No. 27 Cdo 3437/2024)
In this decision, the Supreme Court considered whether an agreement on the transfer of an ownership interest in a limited liability company may be validly concluded during the period between the establishment of the company by its founding document and the company’s incorporation, i.e. before it is entered in the Commercial Register.
In the case at hand, a limited liability company was established by a deed of incorporation under which its founder was to become its sole shareholder and first managing director. On the same day, however, the founder concluded an agreement with a third party on the transfer of a 50% ownership interest in the company, before the company had come into existence. Following the company’s incorporation, the transferee sought an amendment to the entry in the Commercial Register so that she would be registered as a shareholder holding a 50% ownership interest. The registration court dismissed the application, concluding that the agreement on the transfer of the ownership interest was null and void because it required performance that had been impossible from the outset. It held that an ownership interest in a company could not be transferred before the company had been entered in the Commercial Register. This conclusion was subsequently upheld by the appellate court.
The Supreme Court disagreed with this interpretation. It stated that neither legal literature nor its existing case law casts doubt on the possibility of an agreement concerning assets that are yet to come into existence. The fact that the asset forming the subject matter of a transfer does not yet exist at the time the agreement is concluded does not, in itself, render the agreement invalid on the grounds of initial impossibility of performance. According to the Supreme Court, this conclusion also applies to an agreement on the transfer of an ownership interest in a business corporation, as an ownership interest constitutes property in the legal sense
An agreement on the transfer of an ownership interest is therefore not invalid merely because the ownership interest did not yet exist at the time the agreement was concluded and the founder was not yet its owner. In such a case, the transferee becomes the owner of the transferred ownership interest at the time the company comes into existence, unless a later date for the acquisition of title has been agreed. The Supreme Court therefore set aside the decisions of the lower courts, which had considered the agreement invalid due to initial impossibility of performance, and remitted the case to the registration court for further proceedings.
The decision is particularly significant for corporate practice in connection with the establishment of companies. It confirms that the transfer of a future ownership interest in a limited liability company may be contractually agreed before the company comes into existence without the agreement being automatically invalid.
Legal Update 07/2026 download here.