Spanish tax law · Capital Companies Act · 02

Forming a company

Title II, articles 19 to 40 and the nullity rules in articles 56 and 57: the public deed, what the articles of association must say, the two-month registration duty, what happens to a company that trades before it is registered, the online route for an S.L., and the narrow grounds on which a registered company can be declared void.

Unofficial English translation from the Spanish by Voixa Consultors S.L. Alexander Baranov is responsible for the translation. Source: Real Decreto Legislativo 1/2010, consolidated text of the Capital Companies Act, BOE-A-2010-10544 ↗. Check wording, figures, dates and legal effect against the Spanish original before relying on this reading. Source snapshot: 4 November 2026. The chapter on successive formation of the public limited company, articles 41 to 55, is not reproduced here: it applies only to the S.A.

The gap between signing and registering

A Spanish company exists as a legal person only from registration, not from the notary. Everything in this title turns on that gap. Before it closes, whoever acts for the company is personally on the hook; the members answer up to what they promised to contribute; and if the gap is never closed, the limited liability that was the point of the exercise never arrives at all.

Chapter I. General provisions

Article 19. The incorporation of companies

1. Capital companies are incorporated by contract between two or more persons or, in the case of sole-member companies, by unilateral act.

2. Public limited companies may also be incorporated successively by public subscription of shares.

Article 20. Public deed and registration

The incorporation of capital companies shall require a public deed, which must be registered at the Commercial Registry.

Chapter II. Incorporation of companies

Article 21. Execution of the deed of incorporation

The deed of incorporation of capital companies must be executed by all the founding members, whether natural or legal persons, in person or through a representative, who shall assume all the quotas or subscribe all the shares.

Article 22. Contents of the deed of incorporation

1. The deed of incorporation of any capital company shall include at least the following particulars:

a) The identity of the member or members.

b) The intention to incorporate a capital company, with the choice of a specific company type.

c) The contributions made by each member or, in the case of public limited companies, which each member has undertaken to make, and the numbering of the quotas or shares allocated in exchange.

d) The articles of association of the company.

e) The identity of the person or persons initially responsible for the administration and representation of the company.

2. If the company is a limited liability company, the deed of incorporation shall determine the specific manner in which the administration is initially organised, if the articles of association provide for different alternatives.

3. If the company is a public limited company, the deed of incorporation shall additionally state the total amount, at least approximate, of the formation expenses, both those already paid and those merely foreseen up to registration.

Article 22 bis. Online incorporation of companies

Limited liability companies may be incorporated through the wholly online procedure, without prejudice to the possibility of using any other legally established procedure. The other registrable operations, and those directed at compliance with legal obligations in the life of such companies, may also be carried out online.

In the wholly online procedure for the incorporation of a limited liability company, those executing the deed may use, in the notarial public deed, the model of incorporation with standard articles of association, the content of which shall be determined by regulation.

The wholly online procedure may not be used where the members’ contribution to the share capital is made by means of contributions that are not in cash.

Both the incorporation of the company and the online operations shall be governed by this title and by the sectoral rules applicable to them.

One sentence closes the online route. Contributing anything other than cash — a vehicle, equipment, intellectual property, a receivable — takes the company out of the wholly online procedure entirely. A founder planning to capitalise an asset should expect the traditional route, with the timetable and the valuation rules that go with it.

Article 23. Articles of association

The articles of association, which are to govern the operation of capital companies, shall state:

a) The name of the company.

b) The corporate object, specifying the activities comprised in it.

c) The registered office.

d) The share capital, the quotas or shares into which it is divided, their nominal value and their consecutive numbering. In the case of limited liability companies under the successive formation regime, while the capital figure is below the minimum fixed in article 4, the articles of association shall contain an express declaration that the company is subject to that regime. The Commercial Registrars shall record this circumstance of their own motion in the processing notes of any registrable document relating to the company, and in the certificates they issue.

If the company is a limited liability company, it shall state the number of quotas into which the share capital is divided, their nominal value, their consecutive numbering and, if they are unequal, the rights each confers on the members and the amount or extent of those rights.

If the company is a public limited company, it shall state the classes of shares and the series, if any; the part of the nominal value outstanding, and the manner and maximum period for paying it; and whether the shares are represented by certificates, by book entries or by systems based on distributed ledger technology. Where they are represented by certificates, it must be stated whether the shares are registered or bearer shares and whether the issue of multiple certificates is envisaged.

e) The manner or manners of organising the administration of the company, the number of administrators or, at least, the maximum and minimum number, and the term of office and the system of remuneration, if any.

In partnerships limited by shares the identity of the general partners shall additionally be stated.

f) The manner in which the collegiate bodies of the company are to deliberate and adopt their resolutions.

Letter d) still legislates for a regime that no longer exists. It requires the articles of a limited liability company “under the successive formation regime” to declare that fact. That regime lived in article 4 bis, which has been deleted and now reads only “(Deleted)” — it is on the previous page of this series. The sentence in article 23.d) was not removed with it. It is inoperative, but a reader comparing the two articles will be left wondering which one is current.

The corporate object has to list activities, not gesture at them. Letter b) requires the activities comprising the object to be specified. A sweeping object clause copied from elsewhere is a common reason for a registry defect notice, and the object also governs what the administrators may bind the company to.

Article 24. Commencement of operations

1. Unless the articles of association provide otherwise, company operations shall commence on the date of execution of the deed of incorporation.

2. The articles of association may not fix a date earlier than that of the execution of the deed, except in the case of a transformation.

Article 25. Duration of the company

Unless the articles of association provide otherwise, the company shall have indefinite duration.

Article 26. Financial year

In the absence of a provision in the articles of association, the financial year shall be understood to end on the thirty-first of December each year.

Article 27. Advantages of the founders of public limited companies

1. In the articles of association of public limited companies, the founders and promoters of the company may reserve to themselves special rights of an economic nature, the value of which taken together, whatever their nature, may not exceed ten per cent of the net profits obtained according to the balance sheet, once the amount allocated to the legal reserve has been deducted, and for a maximum period of ten years. The articles of association must provide a system of settlement for cases of early extinction of these special rights.

2. These rights may be incorporated into registered certificates other than shares, the transferability of which may be restricted in the articles of association.

Article 28. Freedom of contract

The deed and the articles of association may also include all the agreements and conditions that the founding members consider appropriate to establish, provided that they are not contrary to the law and do not contradict the configuring principles of the company type chosen.

Article 29. Reserved agreements

Agreements kept reserved between the members shall not be enforceable against the company.

A shareholders’ agreement does not bind the company. Article 29 is nine words in Spanish and it decides a great deal. Founders routinely settle veto rights, board seats and exit terms in a private side agreement. That agreement binds the signatories to each other, but the company may disregard it: a resolution passed in breach of it is still a valid company resolution. Anything that is to be enforceable against the company itself belongs in the articles of association, where it is public.

Article 30. Liability of the founders

1. The founders shall be jointly and severally liable to the company, the members and third parties for the inclusion in the deed of incorporation of the particulars required by law, for the accuracy of all the declarations they make in it, and for the proper application of the funds intended to pay the formation expenses.

2. The liability of the founders shall extend to the persons on whose behalf they have acted.

Chapter III. Registration

Article 31. Standing to apply for registration

The founding members and the administrators of the company shall have the powers necessary to present the deed of incorporation at the Commercial Registry and, where appropriate, at the Land and Movable Property Registries, and to apply for or carry out the assessment and make payment of the corresponding taxes and expenses.

Article 32. Legal duty to present for registration

1. The founding members and the administrators must present the deed of incorporation for registration at the Commercial Registry within two months from the date of execution, and shall be jointly and severally liable for the loss and damage they cause by failing to comply with this obligation.

2. Registration of the deed of incorporation and of all other acts relating to the company may be carried out on proof that the assessment of the taxes corresponding to the registrable act has been applied for or carried out.

Article 33. Effects of registration

On registration the company shall acquire the legal personality corresponding to the company type chosen.

Article 34. Non-transferability of quotas and shares before registration

Until registration of the company or, where applicable, of the resolution to increase the share capital at the Commercial Registry, the quotas may not be transferred, nor may the shares be delivered or transferred.

Article 35. Publication

Once the company is registered at the Commercial Registry, the Commercial Registrar shall send for publication, electronically and at no additional cost, to the Boletín Oficial del Registro Mercantil, the details relating to the deed of incorporation that are determined by regulation.

Section 2. The company in formation

Article 36. Liability of those who have acted

For acts and contracts entered into in the name of the company before its registration at the Commercial Registry, those who entered into them shall be jointly and severally liable, unless their effectiveness was made conditional on registration and, where appropriate, their subsequent assumption by the company.

Article 37. Liability of the company in formation

1. For acts and contracts indispensable for the registration of the company, for those carried out by the administrators within the powers conferred on them by the deed for the phase prior to registration, and for those stipulated under a specific mandate by the persons designated for that purpose by all the members, the company in formation shall be liable with such assets as it has.

2. The members shall be personally liable up to the limit of what they have undertaken to contribute.

3. Unless the deed or the articles of association provide otherwise, if the date of commencement of operations coincides with the execution of the founding deed, the administrators shall be understood to be empowered to carry on the corporate object fully and to perform all kinds of acts and contracts.

Article 38. Liability of the registered company

1. Once registered, the company shall be bound by the acts and contracts referred to in the preceding article, and by those it accepts within three months from its registration.

2. In both cases the joint and several liability of members, administrators and representatives referred to in the two preceding articles shall cease.

3. Where the value of the company’s assets, added to the amount of the expenses indispensable for the registration of the company, is lower than the capital figure, the members shall be obliged to cover the difference.

Trading before registration is personal trading. Whoever signs a contract in the company’s name before it is on the register is jointly and severally liable for it under article 36, unless the contract was expressly made conditional on registration. That personal liability ends only when the company is registered and either the act was indispensable to registration or the company accepts it within three months. Making the first contracts conditional on registration, in writing, is what turns this from a real exposure into a formality.

Paragraph 3 is a top-up obligation nobody expects. If, at registration, the company’s assets plus the indispensable formation costs come to less than the stated capital, the members must pay in the difference. A company formed at a low capital figure that has already spent money on notary and registry fees can reach registration below its own capital, and the shortfall falls on the members.

Section 3. The company that has become irregular

Article 39. The company that has become irregular

1. Once the intention not to register the company has been established and, in any event, where one year has elapsed since execution of the deed without registration having been applied for, the rules of the general partnership or, where appropriate, those of the civil partnership shall apply if the company in formation has commenced or continued its operations.

2. In the event of subsequent registration of the company, paragraph 2 of the preceding article shall not apply.

Article 40. Right of a member to seek dissolution

Where the company has become irregular, any member may seek the dissolution of the company before the commercial court of the place of the registered office and demand, after liquidation of the company’s assets, the corresponding share, which shall be satisfied, so far as possible, by the return of their contributions.

A year without registering converts the company into a partnership. This is the gravest provision in the title. If a deed is executed and registration is never applied for, and the business trades, after one year the rules of the general partnership apply — and in a general partnership the partners answer for the debts with their own assets, without limit. Registering late does not restore the position retrospectively: paragraph 2 disapplies the rule that would otherwise have ended the members’ and administrators’ joint liability.

Chapter III bis. Electronic incorporation of the limited liability company

Article 40 bis. Electronic models for electronic incorporation

The Ministry of Industry, Trade and Tourism, together with the Ministry of Justice, shall introduce the necessary amendments to the Single Electronic Document, the standard articles of association and the standardised public deed, and include them on their respective electronic sites. These documents must also be accessible through the single European digital gateway. A communication node with the notarial platform shall also be provided for.

Such model documents must be drafted in Spanish, in the co-official languages and in English. The execution of the public deed and its registration shall be carried out in accordance with the notarial and registry rules respectively.

Article 40 ter. Contributions

1. Cash contributions shall be made by means of an electronic payment instrument widely available in the European Union. The instrument must allow identification of the person who made the payment and must be provided by an electronic payment service provider or financial institution established in a Member State.

2. The documentation, valuation and transfer of cash contributions shall be carried out electronically. The notary shall also verify, without prejudice to the registrar’s assessment under the general rules, where necessary, that the reality and, where applicable, the valuation of the contributions made to the company’s share capital has been evidenced.

3. However, in accordance with article 62(2), it shall not be necessary to evidence the reality of the cash contributions on the incorporation of limited liability companies if the founders declare in the deed that they will be jointly and severally liable, to the company and to the company’s creditors, for the reality of those contributions.

Paragraph 3 swaps a bank certificate for a personal guarantee. Founders may skip evidencing that the cash was actually paid in, but only by declaring in the deed that they answer personally, jointly and severally, to the company and to its creditors for the reality of the contribution. It speeds up incorporation; it does not remove the money, it moves who is liable for it.

Article 40 quater. Commercial Registry and registration

The Commercial Registry competent to receive the public deed of incorporation and its electronic documentary annexes shall be that of the registered office of the company being incorporated.

The online incorporation procedure, where standardised deeds with coded fields and standard articles of association are used, shall be completed within six working hours counted from the day following the date of the presentation entry or, where applicable, the date of return of the withdrawn document; for these purposes, working hours are those falling within the opening hours fixed for the registries. In other cases, the assessment and registration shall be carried out within a maximum of five working days counted from the day following the date of the presentation entry or, where applicable, the date of return of the withdrawn document. If the definitive registration is made while the presentation entry is in force, the effects shall be backdated to that date.

Where there is justified cause on technical grounds or by reason of the special complexity of the matter preventing compliance with that period, the Commercial Registrar must notify the interested party of that circumstance.

Six hours, but only on the standard template. The six-working-hour deadline applies where a standardised deed with coded fields and model articles is used. Depart from the template — a bespoke object clause, a tailored transfer restriction — and the deadline becomes five working days.

Article 40 quinquies. Exceptions

1. The electronic incorporation of the company, in compliance with the requirements laid down by the preceding articles, shall be carried out wholly online and without the founders needing to appear in person before the notary. However:

(i) on grounds of public interest and in order to prevent any falsification of identity, the notary may, for the purpose of verifying the exact identity of the founder, require the physical appearance of the interested party on one occasion only;

(ii) in the same way, that physical appearance may be required by the notary in order to verify fully the capacity of the party executing the deed and, where applicable, their effective powers of representation.

In these cases, the notary must annex to the deed the reasons for which the appearance of the parties was required.

2. This physical presence shall not prevent the remaining stages and elements of the electronic incorporation procedure from being completed electronically.

“Wholly online” has a notary-shaped exception. The notary retains a discretion to call the founder in once, to confirm identity, capacity or powers of representation. For a founder abroad this is the step worth confirming before booking travel, or not booking it.

Chapter V. Nullity of the company

Article 56. Grounds of nullity

1. Once the company is registered, an action for nullity may be brought only on the following grounds:

a) Because the effective intention of at least two founding members was not present in the constitutive act, where there are several of them, or of the founding member where it is a sole-member company.

b) Because of the incapacity of all the founding members.

c) Because the contributions of the members are not stated in the deed of incorporation.

d) Because the name of the company is not stated in the articles of association.

e) Because the corporate object is not stated in the articles of association, or is unlawful or contrary to public policy.

f) Because the figure of the share capital is not stated in the articles of association.

g) Because the share capital has not been fully paid up, in limited liability companies; and because the minimum payment required by law has not been made, in public limited companies.

2. Outside the cases set out in the preceding paragraph, neither the non-existence nor the nullity of the company may be declared, nor may its annulment be declared.

Article 57. Effects of a declaration of nullity

1. A judgment declaring the nullity of the company opens its liquidation, which shall follow the procedure provided for in this Act for cases of dissolution.

2. Nullity shall not affect the validity of the company’s obligations or claims towards third parties, nor those contracted by third parties towards the company, both being subject to the regime proper to liquidation.

3. In limited liability companies, where the company is declared void for failure to pay up the share capital in full, the members shall be obliged to pay up the part that remained outstanding. In public limited companies, where payment to third parties of the obligations contracted by the company declared void so requires, the members shall be obliged to pay up the part that remained outstanding.

Nullity is a liquidation, not an unwinding. A company declared void is not treated as never having existed: its contracts with third parties stand and are settled through liquidation. The list of grounds in article 56 is closed, and paragraph 2 says so expressly, which makes a registered Spanish company much harder to attack than the length of the list suggests.

Where this sits

Title III, on the next page, deals with contributions: what may be contributed, the difference between cash and contributions in kind, how non-cash contributions are valued in a limited liability company, and who answers if the valuation proves wrong.

Nothing here is advice on your own position, and this reading is not the official text. Spain publishes no official English version of this Act; where the wording matters to a decision, read it against the Spanish original linked above.