Izvorni znanstveni članak
https://doi.org/10.3935/zpfz.76.1.5
Prohibition of Set-Off in Relations Between Shareholders and the Joint-Stock Company
Jelena Tadić Cegnar
; Ekonomski fakultet Sveučilišta u Zagrebu, Zagreb. Hrvatska
Sažetak
The paper analyzes the prohibition of set-off between a company member’s claim and the company’s claim arising from the obligation to pay in share capital, as regulated by Article 216 of the Croatian Companies Act. According to the second sentence of Article 216 (1) set-off with the company's claim under the provisions of Article 212 (Main Obligation of Shareholders) and Article 215 (Payment of Predecessor's Obligation) is not permitted. The linguistic ambiguity of Article 216(1) as well as the fact that the provision does not expressly and clearly define the addressees of the prohibition, raises a number of issues that reach into the very core of the fundamental status-law characteristics of a joint-stock company, which are based on the principles of capital contribution and capital maintenance.
Accordingly, the paper undertakes both a literal and a teleological interpretation of the statutory provision. Both methods of interpretation lead to the conclusion that the only addressee of the statutory prohibition of set-off is the shareholder. The paper then analyzes the conditions under which a declaration of set-off made by the joint-stock company is not subject to the statutory prohibition. It is particularly emphasized that the key condition for assessing the permissibility of unilateral set-off by the company is that the shareholder’s claim must correspond in value to the nominal amount of the company’s claim for payment of contributions. Furthermore, the paper highlights that the statutory prohibition of unilateral set-off does not exclude the possibility of contractual set-off, since the parties may base such a possibility on the principle of freedom of contract in regulating their obligations.
Ključne riječi
prohibition of set-off; shareholder; joint-stock company; principles of capital contribution and capital maintenance
Hrčak ID:
347245
URI
Datum izdavanja:
19.5.2026.
Posjeta: 0 *