Interesting case on the time limit for considering an offer in the exercise of the pre-emptive right to buy out a share.

Ruling dd. 25.02.2022 in case A40-231307/2020 (305-ES21-22567)

Subject matter:

Two members of the Company concluded with the Citizen contracts of sale of their shares in the authorized capital of the Company in the amount of 25% each.

Other shareholders of the Company addressed the court, believing that the participants of the contracts have infringed the right to purchase the shares in the authorized capital of the Company alienated by them.

Participants of the Company pointed out the violation of the procedure of notification by the Respondents of their intent to sell their shares.

The position of the courts:

The courts of three instances satisfied the suit.

The courts proceeded from the fact that the agreements of sale and purchase of shares in the authorized capital of the Company were made by the Respondents within 30 days from the moment of receiving of the corresponding offer by the Company in this connection the priority right of the plaintiffs for purchase of disputable shares was violated.

The thirty-day period specified by the law, which provides for the pre-emptive right to purchase shares in the authorized capital of the Company, the courts calculated from the time of expiration of the period of storage of registered mail at the post office at the address of registration of the Company, because the addressee of correspondence delivered in accordance with the Rules of postal services has the right to receive the correspondence addressed to him within this period.

Since the correspondence with the offers contained therein was returned to the sellers of shares due to expiration of storage time, the notice, according to the courts, can be considered as delivered to the Company only on August 26, 2020 and exactly from this moment the thirty-day period for the preemptive right to purchase a share in the authorized capital of the Company should be calculated.

Disputable contracts on sale of shares in the charter of the Company were concluded by the defendants on 04.09.2020, that is in 9 days after the beginning of the calculation of the thirty-day period.

Supreme Court Position:

On 07/28/2020, when the letter carrier attempted to deliver notices to the Company’s address, the Company’s proxy was not present and they were dropped into the mailbox at the guard post.

A notice is also considered delivered in cases where it was received by the person to whom it was sent, but due to circumstances depending on him, it was not handed over to him or the addressee did not read it.

The law, taking into account the need to ensure the receipt of legally significant messages, with which the law or the transaction associates civil law consequences for another person, recognizes the message delivered (fiction of delivery) and in the absence of this fact, if it was received by the person to whom it was sent, but was not delivered through the fault of the addressee, thereby placing the risk of consequences of non-reception on the legal entity itself.

The return of the mail at the expiration of the period of storage, of receipt of which the Company, as it claims, was not aware, could no longer depend on the person itself and thus affect the increase in the period of delivery, since the said rule of law allows to apply the fiction of delivery only in cases where legally significant messages were not delivered due to circumstances depending on the addressee, that is, associated with their receipt at the location of the person, in this case, by dropping a notice in a mailbox available to the Company for collection

According to the CC RF, the rule of paragraph 1 of Art. 165.1 of the Civil Code, the moment at which a person arises of civil consequences associated with legally significant message is determined by the time of delivery of such information to the person or his representative, as well as equating to the delivery of the message its receipt by the person to whom it was sent (addressee), but was not handed over due to circumstances depending on the person or who did not read this message, aimed at ensuring the certainty of civil relations and the stability of citizens .

The judicial acts were cancelled, the case was sent for new consideration.