Vinkulation
The Vinkulation (also Vinkulierung , lat. Vinculum : Band, ankle) is a term from the company law with which the statutory requirement for approval of a corporation for the assignment of a fraction z,. B. in the form of a share , is circumscribed. However, the term also includes the pledging of goods or - mainly in Austria - the pledging / assignment of insurance claims.
Legal position
The Vinkulation (Engl. Registered share with restricted transferability ) is a special type of registered share . A registered share requires for its transmission to the approval of the issuing corporation ( § 68 para. 2 AktG ). This further restricts the already low marketability of registered shares. Since the company may refuse to consent to the transfer, the shareholder entered in the share register is initially only entitled to assert the rights resulting from the share.
Registered shares with restricted transferability are also materially legally born order papers and not recta papers and can therefore be transferred by endorsement . The required consent to the transfer only restricts the transport function of the endorsement, but does not change its character as an order document. In practice, however, registered shares with restricted transferability are usually transferred by way of blank assignment. The issuer's form practice generally provides for assignment . The decisive factor here is that the necessary consent to the transfer is given implicitly with the registration in the share register and that the blank assignment provides the more suitable documents. In addition, the declaration of assignment completed by the buyer is a sufficient indication of the transfer of rights to be evidenced in accordance with Section 68, Paragraph 3, Clause 2 of the AktG. This means that registered shares with restricted transferability become technical securities.
Voluntary constraint
The law generally allows a stock corporation to choose between bearer and registered shares. In the case of registered shares, restricted transferability is only required by law in a few exceptional cases. Registered shares are voluntarily restricted if unwanted shareholders (such as competitors or people outside the family) are to be excluded from purchasing the shares from the outset. If the issuer does not agree to a transfer of ownership of registered shares with restricted transferability, the new acquirer does not receive any voting rights. When granting global approval, the company does not have to approve each individual share purchase. Registered shares with restricted transferability are issued in particular by insurance companies or ancillary service stock corporations .
Vinkulation by law
Registered shares with restricted transferability are legally stipulated in the case of ancillary performance obligations of the shareholder ( Section 55 (1) sentence 1 AktG) and in the case of the shareholders' rights to delegate to the supervisory board ( Section 101 (2) sentence 2 AktG). In addition, a restriction on transferability was planned for capital investment companies (Section 1 (4) and (5) KAGG old version).
Especially in security-relevant sectors such as the defense industry and aviation, companies are sometimes forced by law to issue registered shares with restricted transferability. Deutsche Lufthansa AG has also been issuing registered shares with restricted transferability since September 1997 in order to provide the proof required in air transport agreements and EU directives that the majority of Lufthansa shares are in German hands.
Further exceptions apply to investment stock corporations ( section 109 (2) sentence 3 of the KAGB ) and companies that are legally required to influence the group of shareholders through the issue of registered shares with restricted transferability. These include auditing and bookkeeping companies ( Section 28 (5), Section 130 (2 ) WPO ) or tax consulting companies ( Section 50 (5 ) StBerG ).
Finally, legal restrictions apply to partnerships ( civil law partnership , general partnership , limited partnership ). This is due to the fact that these companies typically have a manageable group of shareholders, characterized by personal relationships, who should not be able to be changed without everyone's consent. However, it is widely accepted and widely, in association allow a transfer under certain conditions.
consequences
The restriction on transferability prevents shares from being freely traded on the market because their marketability compared to bearer shares is severely restricted. However, it has the advantage that the stock corporation does not have to fear a hostile takeover because every purchase transaction requires its approval.
The articles of association of the AG can stipulate certain reasons for which consent may be refused ( Section 68 (2) sentence 4 AktG). If consent is refused, the proposed share transfer is a legal defect in the purchase contract ( Sections 434, 439 and 440 in conjunction with Section 323 et seq. BGB ). If the intended buyer was not aware of the transfer restrictions on the shares, the seller is responsible for the impossibility of the transfer. Then the intended buyer can withdraw from the contract in accordance with Section 440 (1) BGB in conjunction with Section 325 BGB or demand compensation for non-performance. However, if the intended buyer is aware of the restriction on transferability, the buyer's claim to consideration expires in accordance with Section 323 (1) or (3) BGB.
The restriction on transferability only covers the disposal transactions in rem and does not affect the underlying contract under the law of obligations. If the company refuses to approve the transfer on the basis of its articles of association, this renders the share transfer ineffective, while the contractual obligation (namely the payment of the purchase price for the share) remains. The pledging of registered shares with restricted transferability for credit purposes also requires the approval of the company, since according to Section 1274 (1) sentence 1 BGB, the pledging of shares is based on the applicable regulations.
Conversely, legally provided consequences of transfer such as universal succession through inheritance or the agreement of a community of property between married couples are not dependent on the consent of the company . These are not legal transactions, and only these are subject to transfer restrictions.
Restriction of transferability can cause particular problems in fiduciary relationships. Since the trustee is a partner or shareholder in the external relationship, both the possible relapse of the trust property to the trustor and the transfer to a third party (as a new trustee) require the approval of the company. If trust agreements endanger the purpose of a restriction on transferability, they can be immoral and therefore void according to Section 138 of the German Civil Code .
Vinkulation at the GmbH
The transferability of GmbH shares is possible in Germany in accordance with Section 15 (5) GmbHG by stipulating in the articles of association. In the case of the GmbH, it is even possible to exclude assignability in accordance with Section 15 (5) of the GmbHG.
Pledging of goods
There has been literature on this since 1908. According to this, the transfer business is a special form of a credit agreement in which exported or imported goods that are still in transit are pre-financed and at the same time pledged as security for this credit business .
Transfer transactions of this kind arose through trade with foreign countries. The foreign seller has at his disposal goods destined for export, which he has advanced through a bank. The seller hands over the shipping documents, which must be traditional documents, endorsed to his bank , and this bank is then legally the owner of the goods. The bank offers the goods to the buyer, who then pays the purchase price. This purchase price is used to repay the credit, which is why the bank can transfer the shipping documents to the buyer and the buyer, as the new owner of the goods, can request the return of the goods from the carrier. In the transfer business, the handing over of the goods to the buyer is linked to the handing over of the papers by the seller. The transfer transfer business was the predecessor of today's letter of credit .
Insurance
The assignment or pledging of insurance claims is referred to as restriction on transferability, particularly in Austria, but is to be classified differently in law. The decision of the Supreme Court of November 20, 1996 offers an exemplary case. When insurance is restricted , all benefits from this insurance are subject to the consent of the so-called restricted transfer creditor . In Austria, benefits from (life) insurance , which serve as collateral for loans, are generally restricted and not pledged, since restricted transferability is not tax-damaging under Austrian law, but pledges and assignments are.
Web links
Individual evidence
- ↑ Veronika Schinzler, The partially paid-in registered share , 1999, p. 31.
- ↑ Veronika Schinzler, The partially paid-in registered share , 1999, p. 25.
- ↑ The Aviation Proof of Protection Act (LuftNaSiG) stipulates that listed German aviation companies must comply with certain requirements with regard to ownership and control in order to maintain their aviation rights
- ↑ According to EU regulation 2407/92, an airline company must be owned and controlled by EU member states or their nationals directly or through a majority stake in order to maintain and acquire an operating license for air transport
- ↑ Florian Becker / Tobias Bürgers / Torsten Körber, Heidelberg Commentary on the Stock Corporation Act , 2008, p. 72.
- ↑ a b The intended buyer can then demand the purchase price back according to § 812 BGB (conditional).
- ↑ Veronika Schinzler, The partially paid-up registered share , 1999, p. 30.
- ↑ Veronika Schinzler, The partially paid-in registered share , 1999, p. 52.
- ↑ Erik Kießling, Vorgründungs- und Vorgründungs- und Vorgesellschaft , 1999, p. 192.
- ↑ James Breit, Das Vinkulationsgeschäft (The Lombardization of rolling goods) , 1908, p. 10 ff.
- ↑ Reference number: 7Ob2238 / 96k , OGH of November 20, 1996.
