Background in fact

The STS of February 10, 1992  contemplate a case of family business where a group of family members expands the social capital to leave the majority to another family member. This maneuver has been common for a few years. In this case, the uniqueness is that the capital stock is not determined by the documents but by a shareholders' agreement entered into between the family partners.

It is the company MUNAKA, SA dedicated to the food distribution branch and with registered office in Bizkaia. Two family groups facing each other. On the one hand, Jon who is the plaintiff and on the other his brother Valentín, his wife Teresa and the mother of the Flor brothers. 

The disagreements between the two groups were notorious since the 70s and led to social agreements on October 17, 1985 where the two brothers, Jon and Valentin, recognized ownership of 50% of all property and assets. Among them are the shares of MUNAKA SA even though they were in the name of the mother Flor. These actions were also of the two brothers. In 1985 they drew up a roadmap that led to the dissolution and liquidation of the company. 

With these private agreements taken, on December 24, 1985 a General Meeting of partners was convened in order to increase capital with a non-monetary contribution of some properties located in Bizkaia and which according to the private agreements belonged to the two brothers. With this expansion, Valentín obtains an absolute majority in MUNAKA, SA.

The peculiarity is that Jon, the confronted brother, was not notified of the summons. Despite this, the Meeting was held with the concurrence of the other family group that approved the expansion. The reason for not calling was that the social pacts signed in October 1985 were challenged by Jon because they were not being fulfilled and the other family group "understood" that the pacts were not valid. 

Question litigious 

Jon challenges the capital increase agreement for abuse of rights. This is based on the violation of the private agreement that he had challenged for non-compliance but that was the pretext to convene a Board and leave it in the minority in the SA:

Iter judicial

Plaintiff Jon, wins in first, second instance and on appeal. 

The Supreme Court accepts the plaintiff's thesis that we are facing an abuse of the right and does not accept the appeal for cassation, imposing the costs on the appellant.

At the Bosch-Bages Notary in Barcelona, ​​you can on request more information.