Verification of signature of share transfer agreement by attorney
The Supreme Court (SC) dealt with the question of the validity of an agreement on the transfer of shares in a limited liability company where the signature of the transferee was verified by an attorney who at the same time signed the share transfer agreement on behalf of the transferor.
The transferee, as a shareholder of the target company, subsequently sought to have the resolution of its general meeting declared null. The lower courts held that the transferee could not seek a declaration of nullity because they had not become a shareholder of the company in the first place – in the courts’ opinion, the share transfer agreement was null because the transferee's signature had not been properly verified as the verifying attorney had not been impartial in this case.
The SC disagreed with the conclusions of the lower courts (Resolution 27 Cdo 3120/2023). It concluded that the requirement for the attorney’s impartiality when verifying a signature cannot be inferred from the law or the Bar rules. At the same time, the SC disagreed that any breach of an attorney's duties in verifying a signature would automatically lead to the absence of such a verification; such a conclusion would constitute an unreasonable infringement on the legal certainty of all those who rely on attorneys verifying their signatures. Thus, it was not relevant that the attorney who verified one party’s signature at the same time also represented the other party.
The SC further addressed the question whether the signatures in the share transfer agreement not having been verified could cause the agreement to be absolutely null and void. According to the SC, the meaning and purpose of the requirement to have signatures in a transfer agreement verified is to ensure a higher degree of legal certainty for both the company and the shareholders as to what share is being transferred and who the transferee is. The SC reiterated that in the case of a share transfer agreement, this protection is already ensured by the regulation of the effectiveness of the agreement vis-à-vis the target company: the transferee does not become its shareholder until the agreement is delivered to the company. Therefore, even the absence of a verification of a signature in a share transfer agreement is not a reason for its absolute nullity.