Reduction of capital with return of contributions

In an SL, a capital reduction has been approved by the majority of the partners through the return of contributions only to the minority partner. See, with a concrete example, if this operation is valid.

A family business is formed by three partners who are siblings: two of them have a 40% stake each and the third holds only a 20%. Over time, a series of conflicts arise between the majority and the minority, and for this reason, they decide to expel their other brother from the company.

To do this, the two majority partners approve in a meeting a capital reduction through the modality of return of contributions: that is, an operation through which the company returns to one or several partners all or part of the money or goods they contributed to the company at the time.

Therefore, in this specific case, with the approval of this operation, they manage to expel their brother from the company, since:

• 100% of the shares of this third brother, the minority partner, are amortized.
• In exchange, he will receive a financial compensation and will cease to be part of the company.

However, the minority partner challenges this agreement arguing that, since the capital reduction with return of contributions does not affect all partners equally (only him), the favorable vote of the majority is not enough: the consent of all partners is necessary and, therefore, also his. But is he right?

Well, the Supreme Court has ruled on a similar case and declared null a capital reduction with return of contributions that had been approved by the majority of the partners and which implied that one of them would receive his contribution and leave the company, while the others would remain in it.

According to the Court, the fact that the capital reduction does not affect all partners equally constitutes a disparity of treatment that requires the consent of all of them for the agreement to be valid. Therefore, when a capital reduction with return of contributions is selective, it must be approved unanimously. Otherwise, it will be null.