Original scientific paper
https://doi.org/10.3935/zpfz.70.5.01
The Form of the Power of Attorney to Enter into a Share Transfer Agreement in the Light of the Decision of the High Commercial Court of 11 December 2019
Antun Bilić
orcid.org/0000-0001-5144-0821
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Siniša Petrović
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
The High Commercial Court held that the power of attorney to enter into a share transfer agreement must be executed in the form required for the share transfer agreement itself – that of a notarial act or a private document certified by a public notary. In the absence of such form, the share transfer agreement is invalid. This paper examines whether this conclusion is justified. Although the High Commercial Court correctly applied the requirement of “parity” between the form of an agreement and the power of attorney for its conclusion, this rule should be restricted whenever the form’s primary purpose is not the protection of the parties. Furthermore, other statutes suggest that the share transfer agreement can be entered into on the basis of a written power of attorney with the signature authenticated by a public notary. Finally, even if the “parity” rule is literally applied, the absence of parity does not cause the invalidity of the share transfer agreement, but only its temporary ineffectiveness, which can be cured by the principal’s approval.
Keywords
share transfer agreement; form of the power of attorney; parity of form; temporary ineffectiveness of an agreement
Hrčak ID:
247313
URI
Publication date:
24.11.2020.
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