- The Supreme Court (judgment of 3 June) requires the consent of all partners if the return of contributions does not affect all shares equally.
- A majority or the approval of only the affected partners is not enough: those who remain also see their position altered.
- Without that consent, the resolution is exposed to nullity.
The Supreme Court (Civil Chamber) issued judgment 853/2026 on 3 June 2026, on a capital reduction in a limited company. The company cancelled the shares of one partner and returned the value of her contributions in assets and cash. The resolution was approved with 81.81% of the capital, but one partner voted against and sued for its nullity. The Commercial Court rejected the claim; the Provincial Court upheld it and declared the resolution void, and the Supreme Court has dismissed the company’s appeal.
The criterion is clear: when a reduction with return of contributions does not affect all shares equally, the individual consent of all partners is needed, not just that of the holders of the cancelled shares. The dissenting partner, although remaining in the company, was entitled to object. The decision sets a relevant criterion for limited liability companies, the most common corporate form among Spanish small and medium-sized businesses.
What the law says and how the court read it
The Capital Companies Act requires, for this type of reduction, “the individual consent of the holders of those shares”. The Supreme Court admits that the current wording is less clear than that of the former limited liability companies act, which expressly required the consent of all partners, but it interpreted that “those” shares are all of them, because the return of value does not affect all equally.
It also relied on the Commercial Registry Regulation, which requires the deed to state that all partners consented to “this form of reduction”. A systematic reading of both rules leads to the same result. It is an interpretation that protects the partner who stays, whose stake gains relative weight when another leaves, without having had a say on the terms.
Equal treatment of partners
The core of the argument is equality. The law imposes equal treatment on partners in the same position, and provides that the return of contributions is made pro rata to the value paid in, unless all agree otherwise. A selective reduction breaks that rule, and therefore needs everyone’s agreement.
The court added a practical idea: this type of reduction changes each partner’s legal and economic position. For the one leaving, it means recovering the investment; for the one staying, keeping it invested. Whether one or the other is better cannot be generalised, so each partner must be able to decide. The law also protects creditors in capital reductions, with a right of opposition, but this judgment focuses on protecting the partners themselves.
What to review
Limited companies planning a partner’s exit by capital reduction should not rely on a majority, however large. Where there is no unanimity, other routes exist, such as the purchase of the shares by the company itself or by other partners, or exit and expulsion procedures, each with its own requirements and tax consequences. Unanimity also requires each partner to give consent individually and in a documented way, something to prepare in advance at a meeting or in writing.
In family businesses and closely held companies, it is advisable for the articles and shareholder agreements to regulate in advance how exits are handled and how shares are valued. Documentation also matters: the notary and the registrar will require evidence of consent. Each case depends on its articles; consult your commercial adviser. And if the company has a shareholders’ agreement, it is worth checking what it provides for exits.
In a closely held company, equality between partners is not settled by majority.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
