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Is parental authorization necessary to sell assets of a company where a minor has stakes or shares?

In principle, non-emancipated children are under the parental authority of the parents, concluding that among the inherent duties of parental authority is the care and maintenance of them, as well as the duty to administer their assets.
 
That is why we must make an exhaustive analysis of the legal origin, the right of parents to dispose of property belonging to it even when it is minor and the restrictions that exist on this power and especially, those that refer to the authorizations necessary to dispose of assets of a company, when one of the shareholders is a minor.

Can a minor be a shareholder of a Company?

According to the company lawyers of Forcam Abogados, there are multiple reasons why a minor could be a shareholder of a company, especially and especially by inheritance and inheritance transmission, in this regard the civil code establishes the following in its article 154: “Non-emancipated children are under the parental authority of the parents.

Parental authority, as parental responsibility, will always be exercised in the interests of the children, in accordance with their personality, and with respect for their rights, their physical and mental integrity.

This function includes the following duties and powers:

  1. To watch over them, have them in your company, feed them, educate them and provide them with comprehensive training.
  2. Represent them and manage their assets. 

If the children are mature enough, they should always be heard before making decisions that affect them.

Parents may, in the exercise of their function, seek the assistance of the authority”.

When the law mentions seeking the assistance of the authority, it refers to the father's duty to request the authorization of the judge in certain cases, since if we concatenate with article 166, we observe the duty to request authorization from the authority for the sale of property belonging to a minor: “Parents may not waive the rights that their children hold or alienate or encumber their real estate, commercial or industrial establishments, precious objects and securities, except for the right to preferential subscription of shares, but for justified causes of utility or necessity and prior authorization of the Judge of the domicile, with a hearing from the Public Prosecutor's Office.

In which cases can the property owned by a minor be sold?

Therefore, in order to dispose of assets owned by a minor, the following assumptions must be met:

  • Justified cause of utility
  • Need
  • Authorization of the Judge
  • Hearing of the Public Ministry Prosecutor

It will be the Judge of the Domicile who determines if the goods can indeed be sold, if the end justifies the means, since doing an exhaustive examination will determine if the allegations of the parents are true and will authorize the disposal of the goods.

On the other hand, the same article tells us that the hearing of the public prosecutor's office is necessary, since, when dealing with rights inherent to minors, the public prosecutor must ensure that their rights are not violated.

Is there any possibility of alienating the assets of minors without the need for authorization from a judge?

Yes, as long as the minor is over 16 years old.

"Judicial authorization will not be necessary if the minor has reached sixteen years of age and consents in a public document, or for the sale of securities provided that the amount is reinvested in assets or safe values."

In this case, the sale of movable assets is subject to reinvestment.

What happens if there is misappropriation of the assets by the parents / administrators?

When the administration of the parents endangers the property of the child, the Judge, at the request of the child himself, the Public Prosecutor's Office or any relative of the minor, may adopt the measures he deems necessary for the security and collection of the assets, demand surety or surety for the continuation in the administration or even to appoint an Administrator. Likewise, parents must ensure the care of the thing, that is, the care of the property of the children: "In case of loss or deterioration of the property due to fraud or gross negligence, the parents will be liable for the damages suffered.”

The Civil Code also stipulates that the parents will administer the children's assets with the same diligence as their own, fulfilling the general obligations of all administrators and the special ones established in the Mortgage Law.


Contact us, and our lawyers specializing in business law will study your specific case. 

At Forcam Abogados we have offices in Barcelona, Tarragona, Reus and Tarrega.