Părţile sociale între liberalitate și mecanism corporativ: o lectură despre gratuitate, validitate și formalism
Social Parties between Liberality and Corporate Mechanism: A Reading on Gratuitousness, Validity and Formalism

Summary/Abstract: In the dynamics of corporate relations, practice clearly reveals the solution of transferring shares through gratuitous transfers, instrumented, for reasons of speed and efficiency, in the form of a document under private signature. This path, apparently unconventional, from the perspective of the rigors imposed on liberalities in civil law, finds its justification in the specifics of the corporate order, where the social will and the statutory consensus of the partners prevail. In judicial practice, such transfers have frequently been contested as donations lacking validity due to the disregard of the solemnity of the autentification imposed ad validitatem by art. 1011 C. civ. Our study aims to argue that the transfer of shares, as intangible patrimonial rights, subject to the principle of intuitu personae and publicity through public registers, is not reduced to the traditional logic of donation in civil law, but requires its own criteria of interpretation. The gratuitousness of the transfer is not, in itself, a unique and sufficient element of qualification as a donation, but an expression of a corporate legal strategy of reallocation of participations, based on consent and corporate governance (art. 202 of Law no. 31/1990) and on publicity through registers (art. 203 of the same Law).The analysis also captured the scenario of qualifying the assignment as a donation, verifying compliance with its specific conditions. The examination showed that the validity requirements are presented here in a much more flexible and adapted form than in common civil law, precisely by virtue of the nature of the property transferred and the special procedure governing the transfer of social shares. The determinability of the object does not require an estimated inventory, as in the case of tangible movable assets, since the social shares enjoy a certain determination through the constitutive act, the register of associates of the company and the trade register. This reality, however, also opens up a broader discussion on the possibility of conceiving the free transfer of shares as a form of “manual gift” in the extended sense. If in common law the manual gift is limited to tangible movable goods and values susceptible of material delivery, in corporate law the shares, although they are intangible goods, are transferred through a simplified mechanism of advertising and by registration in the trade register, without the requirement of authenticity. Thus, we have shown that the local jurisprudence follows in the footsteps of the French doctrine regarding the “manual gift” of securities, arguing that the special regime of the free transfer of shares performs an equivalent function, the liberality is executed through an immediate, statutory, technical-legal procedure subject to publicity, which allows its subsumption to a logic close to that of the manual gift, but in a variant adapted to contemporary corporate law, without derogating from the fundamental axiom according to which corporate formalism – and not that of the donation – governs the free transfer of the position of associate.

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