Judicial act: Resolution of the Arbitration Court of the West Siberian District of October 13, 2021 in case No. A46-17341/2020.
Court's findings:
1. From the moment the funds are credited to the account of the defendant, PSK Art-Master LLC cedes the right to claim to him. A transaction for the assignment of a right (claim) should be considered as a transaction related to the acquisition, alienation or the possibility of alienation of the company's property.
2. A major transaction has 2 features: 1) quantitative (value) criterion; 2) a qualitative criterion (the transaction goes beyond the normal business activities, i.e. the transaction will lead to the termination of the company's activities or a change in its type or a significant change in its scale).
To invalidate a large transaction, it is not required to prove the existence of damage. It is important that the transaction was large, was not approved and the other party knew or obviously should have known about these circumstances.
3. Transactions with interest have a special procedure for concluding. Interested party transactions do not require prior consent. To make them, it is necessary to notify non-interested participants. After the notification, the persons may demand that a meeting or a council meeting be held to decide whether to agree to the transaction. If the transaction is not agreed, they will be entitled to receive information about the transaction, including documents and other information confirming that the interests of the company are not violated, the terms of the transaction do not differ significantly from market ones, etc.
4. Lack of consent to the conclusion of an interested-party transaction in itself is not grounds for recognizing such a transaction as invalid.
5. But the damage to the interests of the company as a result of a transaction in which there is an interest, is assumed, unless proven otherwise, in the presence of a combination of the following conditions: there is no consent to the conclusion or subsequent approval of the transaction; the person who filed a claim for the recognition of the transaction as invalid was not provided, at his request, with information regarding the disputed transaction. It is also possible to exclude the alleged nature of the damage, in addition to the above conditions, if the other party to the disputed transaction did not know and should not have known that the transaction was for the company a transaction in which there is an interest, and (or) the absence of consent on its commission (the burden of proving the opposite is on the plaintiff (at the same time, the Supreme Court emphasized that, as a general rule, the law does not establish the obligation of a third party to verify before making a transaction whether the relevant transaction is an interested party transaction for its counterparty and whether it was properly approved.
6. A transaction of a company may be declared invalid at the claim of a participant in the event that, although it does not cause losses to the company, it is nevertheless not reasonably necessary for the economic entity, is made in the interests of only a part of the participants and causes unjustified harm to the rest of the participants in the company, which did not agree to the relevant transaction.
Comments:
1. If the transaction is large - prior consent to its conclusion is necessary. In the absence of consent, the transaction may be declared invalid (in the presence of bad faith of the counterparty);
2. In accordance with paragraph 3 of Art. 45 of Federal Law No. 14 “On Limited Liability Companies” if the transaction is with an interest, no prior consent is required. Notification of other participants + subsequent consent is important. If there is no consent, the right to receive information on the transaction, confirming the observance of the interests of the company, arises. They may be declared invalid if, in principle, there was no notification of its commission.
3. It seems interesting that the court's conclusion that the transaction may be declared invalid if, although there are no losses, but due to the fact that it is not reasonably necessary for an economic entity, it was made in the interests of only a part of the participants and causes unjustified harm to the rest of the participants in the company, which did not agree to the relevant transaction. In this position, reasonable, in our opinion, questions arise:
a) How, in this case, will the court assess the reasonable necessity (expediency) of concluding such a transaction by an economic entity (provided that the court does not analyze the economic feasibility)?
b) what should be understood as a reasonable necessity and how can the parties to the transaction protect themselves from the possible risks of concluding an “unreasonable transaction”? The court does not provide criteria for determining the reasonable necessity of the transaction and the degree of justification of harm to other participants. This criterion seems to be rather vague, because entrepreneurial activity is an activity associated with risk. Most of the transactions made in the course of business activities can hardly be called "necessary" - they can lead to both significant profits and losses due to their risky nature.
c) How will the “unjustified” conclusion of a transaction be assessed for other participants, taking into account the fact that in practice there are always participants who disagree with the decision of the general meeting and the need for a unanimous decision is not provided for in the law? By providing for such a ground for contestation, there are great risks for the counterparties themselves, entering into transactions with LLC, to lose the transaction due to its invalidity.
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