Capital Companies Act · 04

Quotas, members’ rights and transfer

Title IV, articles 90 to 112: what a quota is and why it is not a security, the rights it carries, non-voting quotas, the register of members that decides who the company recognises, and the rules that make selling a stake in an S.L. a procedure rather than a transaction.

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. Chapters IV to VI of this title, articles 113 to 158, deal with the representation and transfer of shares and with dealings in a company’s own shares; they are not reproduced here.

A quota is not a share, and the difference is the whole chapter

Article 92.2 says a quota may not be represented by a certificate or a book entry, may not be called a share, and is in no case a security. Everything that follows comes from that. There is no instrument to hand over, so the company’s own register decides who is a member; there is no market, so the law supplies a procedure for finding a buyer; and because the whole point is a closed company, the Act goes as far as voiding articles that would make the quotas freely transferable.

Chapter I. General provisions

Article 90. Quotas and shares

Quotas in the limited liability company and shares in the public limited company are aliquot, indivisible and cumulable parts of the share capital.

Article 91. Attribution of member status

Each quota and each share confers on its lawful holder the status of member and attributes to them the rights recognised in this Act and in the articles of association.

Article 92. The share as a security

1. Shares may be represented by means of certificates or by means of book entries. In either case they shall be regarded as securities.

2. Quotas may not be represented by means of certificates or book entries, nor be called shares, and shall in no case have the character of securities.

There is nothing to deliver. Because a quota is not a security and has no certificate, a sale is not completed by handing anything over. It takes a public document under article 106, notice to the company, and an entry in the register of members under article 104. A share purchase agreement signed privately, however carefully drafted, does not by itself make the buyer a member.

Chapter II. Rights of the member

Article 93. Rights of the member

On the terms laid down in this Act, and save in the cases provided for in it, the member shall have at least the following rights:

a) To share in the distribution of company profits and in the assets resulting from liquidation.

b) Pre-emption in the creation of new quotas, or pre-emptive subscription in the issue of new shares or of bonds convertible into shares.

c) To attend and vote at general meetings and to challenge company resolutions.

d) The right of information.

Article 94. Diversity of rights

1. Quotas and shares attribute the same rights to the members, with the exceptions established under the law.

Quotas and shares may confer different rights. Shares having the same content of rights constitute a single class. Where several series are constituted within a class, all shares making up a series must have the same nominal value.

2. For the creation of quotas and the issue of shares conferring any privilege over ordinary ones, the formalities prescribed for amending the articles of association must be observed.

Article 95. Privilege in the distribution of company profits

1. Where the privilege consists of the right to obtain a preferential dividend, the other quotas or shares may not receive dividends out of the profits until the privileged dividend corresponding to the financial year has been paid.

2. The company shall, unless its articles of association provide otherwise, be obliged to resolve on the distribution of that dividend if there are distributable profits.

3. The articles of association must establish the consequences of total or partial failure to pay the preferential dividend, whether or not it is cumulative in relation to unpaid dividends, and any rights of the holders of these privileged quotas or shares in relation to the dividends that may correspond to the others.

Article 96. Prohibitions regarding privileges

1. The creation of quotas and the issue of shares carrying a right to receive interest, whatever the manner of its determination, is not valid.

2. Shares may not be issued which directly or indirectly alter the proportionality between nominal value and the right to vote or the right of pre-emption.

3. Quotas may not be created which directly or indirectly alter the proportionality between nominal value and the right of pre-emption.

Paragraph 3 omits voting, and the omission is deliberate. Shares are barred from breaking the link between nominal value and both voting and pre-emption. Quotas are barred only as to pre-emption. A limited company may therefore create quotas carrying more than one vote each, which a public limited company may not. For a founder who wants to take in money without losing control, this is the mechanism the Act actually allows, and it has to be in the articles under article 94.2.

No interest-bearing quotas. Paragraph 1 forbids any quota or share carrying a right to interest, however it is calculated. A member who is to receive a fixed return is lending to the company, not holding equity in it, and the arrangement belongs in a loan agreement.

Article 97. Equal treatment

The company must give equal treatment to members who are in identical circumstances.

Section 2. Non-voting quotas and shares

Article 98. Creation or issue

Limited liability companies may create non-voting quotas for a nominal amount not exceeding half of the capital, and public limited companies may issue non-voting shares for a nominal amount not exceeding half of the paid-up share capital.

Article 99. Preferential dividend

1. Holders of non-voting quotas and shares shall be entitled to receive the minimum annual dividend, fixed or variable, established by the articles of association. Once the minimum dividend has been resolved upon, their holders shall be entitled to the same dividend as corresponds to ordinary quotas or shares.

2. Where there are distributable profits, the company is obliged to resolve on the distribution of the minimum dividend referred to in the preceding paragraph.

3. If there are no distributable profits, or not in sufficient amount, the unpaid part of the minimum dividend must be paid within the following five financial years. Until the minimum dividend is paid, the non-voting quotas and shares shall have the right to vote on an equal footing with ordinary ones, while retaining in all cases their economic advantages.

Non-voting does not mean non-voting for ever. Paragraph 3 restores the vote automatically if the minimum dividend goes unpaid, and the holders keep their economic privileges at the same time. An investor given non-voting quotas acquires a vote precisely in the years the company fails to pay them.

Article 100. Privilege in the event of a capital reduction for losses

1. Non-voting quotas and shares shall not be affected by a reduction of share capital for losses, in whatever form it is carried out, unless the reduction exceeds the nominal value of the remaining ones. If, as a result of the reduction, the nominal value of the non-voting quotas or shares exceeds half of the share capital of the limited liability company, or of the paid-up capital in the public limited company, that proportion must be restored within a maximum of two years. Otherwise, the company shall be dissolved.

2. Where, by virtue of the capital reduction, all the ordinary quotas or all the ordinary shares are cancelled, the non-voting ones shall have the right to vote until the proportion provided for by law with the ordinary ones is restored.

Article 101. Privilege in the liquidation share

In the event of liquidation of the company, non-voting quotas shall confer on their holder the right to obtain reimbursement of their value before any amount is distributed to the remaining ones. In public limited companies the privilege shall extend to reimbursement of the paid-up value of the non-voting shares.

Article 102. Other rights

1. Non-voting quotas and shares shall attribute to their holders the other rights of ordinary ones, save as provided in the preceding articles.

2. Non-voting shares may not be grouped for the purposes of appointing members of the board of directors by the proportional representation system. The nominal value of these shares shall not be taken into account for the purposes of the exercise of that right by the remaining shareholders.

3. Non-voting quotas shall be subject to the rules in the articles of association, and the supplementary statutory rules, on transfer and on the pre-emption right.

Article 103. Prejudicial amendments to the articles of association

Any amendment to the articles of association which directly or indirectly prejudices the rights of the non-voting quotas or shares shall require the agreement of the majority of the non-voting quotas or shares affected.

Chapter III. The register of members and the transfer of quotas in limited liability companies

Section 1. The register of members

Article 104. Register of members

1. The limited company shall keep a Register of Members, in which the original ownership and successive transfers, voluntary or forced, of the quotas shall be recorded, as well as the creation of rights in rem and other encumbrances over them.

2. The company shall treat as a member only the person entered in that register.

3. Each entry shall state the identity and domicile of the holder of the quota or of the right or encumbrance created over it.

4. The company may rectify the content of the Register only if the interested parties have not objected to the rectification within one month of formal notice of the intention to proceed with it.

The personal data of the members may be amended at their request, and until then shall not take effect as against the company.

Paragraph 2 is the sentence that decides disputes. The company recognises as a member only whoever appears in its own Register of Members — not whoever holds a signed purchase agreement, and not whoever is named in some earlier deed. A buyer who has paid and signed, but whose entry was never made, cannot vote, cannot collect a dividend and cannot requisition a meeting. The register is kept and held by the administrative body, which is often the seller’s appointee.

Article 105. Inspection and certification

1. Any member may inspect the Register of Members, the keeping and custody of which falls to the administrative body.

2. The member and the holders of rights in rem or encumbrances over the quotas are entitled to obtain a certificate of the quotas, rights or encumbrances registered in their name.

Section 2. The transfer of quotas

Article 106. Documentation of transfers

1. The transfer of quotas, and the creation of a right of pledge over them, must be recorded in a public document.

The creation of rights in rem other than the one referred to in the preceding paragraph over the quotas must be recorded in a public deed.

2. The acquirer of the quotas may exercise the rights of a member as against the company from the time the company becomes aware of the transfer or of the creation of the encumbrance.

Article 107. Regime of voluntary transfer inter vivos

1. Unless the articles of association provide otherwise, the voluntary transfer of quotas inter vivos between members shall be free, as shall a transfer in favour of the member’s spouse, ascendant or descendant, or in favour of companies belonging to the same group as the transferor. In all other cases, the transfer is subject to the rules and limitations established by the articles of association and, failing that, to those established in this Act.

2. In the absence of regulation in the articles of association, the voluntary transfer of quotas inter vivos shall be governed by the following rules:

a) A member proposing to transfer their quota or quotas must notify the administrators in writing, stating the number and characteristics of the quotas they intend to transfer, the identity of the acquirer, and the price and other conditions of the transfer.

b) The transfer shall be subject to the consent of the company, expressed by resolution of the General Meeting, after inclusion of the matter on the agenda, adopted by the ordinary majority established by law.

c) The company may refuse consent only if it notifies the transferor, through a notary, of the identity of one or more members or third parties who will acquire all of the quotas. No notification to the transferor shall be necessary if the transferor attended the general meeting at which those resolutions were adopted. Members attending the general meeting shall have preference in acquiring. If several attending members are interested in acquiring, the quotas shall be distributed among them all in proportion to their holding in the share capital.

Where it is not possible to notify the identity of one or more members or third parties acquiring all of the quotas, the general meeting may resolve that the company itself acquire the quotas that no member or third party accepted by the Meeting wishes to acquire, in accordance with article 140.

d) The price of the quotas, the manner of payment and the other conditions of the transaction shall be those agreed and notified to the company by the transferring member. If payment of all or part of the price is deferred in the proposed transfer, it shall be a prior requirement for acquisition of the quotas that a credit institution guarantee payment of the deferred price.

Where the proposed transfer is for consideration other than a sale, or is gratuitous, the acquisition price shall be that fixed by common agreement of the parties and, failing that, the fair value of the quotas on the day on which the intention to transfer was notified to the company. Fair value means that determined by an independent expert, other than the company’s auditor, appointed for that purpose by the company’s administrators.

In cases of contribution to a public limited company or a partnership limited by shares, the real value of the quotas shall be that resulting from the report prepared by the independent expert appointed by the Commercial Registrar.

e) The public document of transfer must be executed within one month from the company’s notification of the identity of the acquirer or acquirers.

f) The member may transfer the quotas on the conditions notified to the company where three months have elapsed since they informed it of their intention to transfer without the company having notified them of the identity of the acquirer or acquirers.

3. The articles of association may not confer on the company’s auditor the task of fixing the value to be determined for the purposes of a transfer.

A refusal is only valid if it comes with a buyer. Under letter c) the company cannot simply say no. To block a sale it must put forward, through a notary, one or more members or third parties who will take all of the quotas on offer, and attending members have first call. If it cannot produce a buyer, the sale proceeds. Letter f) gives the member the clock: three months’ silence and they may sell on the terms notified.

The free cases are wider than most founders expect. Unless the articles say otherwise, transfers between existing members, to a spouse, to parents or children, and to companies in the same group need no consent at all. Founders who want those routes closed have to close them expressly in the articles; founders who want them open need do nothing.

Deferred payment needs a bank guarantee, not a promise. Letter d) makes a credit institution’s guarantee of the deferred price a prior condition of the acquisition. An earn-out or instalment structure agreed privately between buyer and seller does not satisfy this where the statutory procedure applies.

Article 108. Prohibited clauses in the articles of association

1. Clauses in the articles of association that make the voluntary transfer of quotas inter vivos practically free shall be void.

2. Clauses in the articles of association under which a member who offers all or part of their quotas is obliged to transfer a number different from that offered shall be void.

3. Clauses prohibiting the voluntary transfer of quotas inter vivos shall be valid only if the articles of association recognise the member’s right to withdraw from the company at any time. The incorporation of such clauses into the articles of association shall require the consent of all the members.

4. Notwithstanding the preceding paragraph, the articles of association may prevent the voluntary transfer of quotas inter vivos, or the exercise of the right of withdrawal, for a period not exceeding five years from the incorporation of the company or, for quotas arising from a capital increase, from the execution of the public deed implementing it.

You may not draft your way to a freely transferable S.L. Paragraph 1 voids any clause that makes transfers practically free. A founder who wants open transferability is being told, in effect, to use a different company type. At the other extreme, an outright ban is valid only if the member may walk out of the company at any time and only if every member consented to the clause — except in the first five years, where paragraph 4 permits a hard lock with neither condition.

Article 109. Regime of forced transfer

1. The attachment of quotas, in any enforcement procedure, must be notified immediately to the company by the court or administrative authority that ordered it, stating the identity of the attaching party and the quotas attached. The company shall record the attachment in the Register of Members, immediately sending all the members a copy of the notification received.

2. Once the auction has been held or, in the case of any other form of forced disposal legally provided for, at the moment before the award, approval of the knock-down and the award of the attached quotas shall be suspended. The court or administrative authority shall send the company a literal transcript of the auction record or of the award decision and, where applicable, of the award requested by the creditor. The company shall forward a copy of that transcript to all the members within a maximum of five days from receiving it.

3. The knock-down or the award to the creditor shall become final one month after the company receives the transcript referred to in the preceding paragraph. Until they become final, the members and, failing them, and only where the articles of association establish a pre-emption right in its favour, the company, may be subrogated in place of the successful bidder or, where applicable, the creditor, by expressly accepting all the conditions of the auction and depositing in full the amount of the knock-down or, where applicable, of the award to the creditor, and of all costs incurred. If subrogation is exercised by several members, the quotas shall be distributed among them all in proportion to their respective holdings.

A creditor’s auction can be overtaken by the other members. Article 109 gives the remaining members a month, counted from the company’s receipt of the auction record, to step into the winning bidder’s shoes by paying the full bid price and costs. It is the mechanism that keeps an outsider from entering a closed company through enforcement.

Article 110. Regime of transfer on death

1. The acquisition of a quota by hereditary succession confers on the heir or legatee the status of member.

2. Notwithstanding the preceding paragraph, the articles of association may establish, in favour of the surviving members and, failing them, in favour of the company, a right to acquire the quotas of the deceased member, valued at their fair value on the day of the member’s death, the price being payable in cash. The valuation shall be governed by the provisions of this Act for cases of withdrawal of members, and the right of acquisition must be exercised within a maximum of three months from notification to the company of the hereditary acquisition.

Heirs walk in unless the articles say otherwise. Paragraph 1 makes the heir a member automatically. A founder who does not want a co-founder’s family in the company has to put the buy-out right of paragraph 2 into the articles in advance, and fund it: the price is the fair value at the date of death, payable in cash, within three months.

Article 111. General regime of transfers

The regime governing the transfer of quotas shall be the one in force on the date on which the member notified the company of the intention to transfer or, where applicable, on the date of the member’s death or of the judicial or administrative award.

Article 112. Ineffectiveness of transfers in breach of the law or of the articles

Transfers of quotas that do not comply with the provisions of the law or, where applicable, with the articles of association shall have no effect whatsoever as against the company.

Non-compliance does not make the transfer irregular; it makes it invisible. Article 112 is categorical: a transfer made without following the law or the articles produces no effect at all as against the company. The buyer has paid, may have a valid contract against the seller, and is nonetheless not a member. This is the article that makes the procedure in article 107 worth following exactly.

Where this sits

Title V, on the next page, moves to the general meeting: what it may decide, how it is convened, who may attend and vote, the majorities, and how a resolution can be challenged.

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.