Right of separation due to change in corporate purpose
The Provincial Court (AP) of Madrid considers that the lack of coincidence between the corporate purpose and the activities actually carried out by a company
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Two individuals signed a contract, which was nominally classified as a joint account agreement, with the aim of participating in the operation of a tobacco shop. However, in its ruling no. 76/2025 of January 23, the AP concluded that this was not a true joint account in accordance with articles 239 et seq. of the Commercial Code, but rather an irregular commercial partnership.
According to the consistent case law of the Supreme Court, a joint account contract requires that the contributions pass into the ownership of the manager, without creating an organizational structure or common assets. In the case examined, the AP found elements characteristic of an irregular partnership: creation of common assets, equal distribution of profits and obligations, and joint organization of the activity.
The judgment also considers that the contract concealed a purpose contrary to the regulations governing the tobacco market (Royal Decree 1199/1999), by seeking to circumvent the prohibition on an administrative concession being held by more than one natural person. This unlawful purpose determines the radical nullity of the contract due to relative simulation, in application of Article 6.3 of the Civil Code.
The Provincial Court (AP) of Madrid considers that the lack of coincidence between the corporate purpose and the activities actually carried out by a company
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