In practice, shareholders of a limited liability company (spółka z o.o.) often transfer their shares — either by selling them or making a donation. But what legal form must be observed for such transfers to be valid?
The sale of shares is clearly regulated by Article 180 of the Polish Commercial Companies Code (k.s.h.), which states that such a transfer requires written form with notarized signatures.
When it comes to donations, the legal form may raise some doubts. Under Article 890 of the Polish Civil Code, the donor’s declaration of intent must take the form of a notarial deed. However, a donation agreement concluded without this form is also valid if the promised performance has been fulfilled. Therefore, written form with notarized signatures should be sufficient for a valid donation of shares — provided that the transfer to the donee can be demonstrated. The issue, however, lies in the fact that shares in a limited liability company are not tangible assets (they cannot be physically handed over). Thus, it is crucial to clearly establish the date on which ownership of the shares was transferred to the donee. Before entering into a donation agreement, the articles of association should also be reviewed for any applicable restrictions.
Gazeta Prawna, September 5, 2023 – by Legal Counsel Agata Okorowska
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