When the shareholders' agreement and the articles say different things: what can actually be required of shareholders

The coexistence of articles of association and parasocial agreements is a constant feature of company practice. Both instruments may govern, sometimes divergently, essential matters such as the exercise of voting rights, the transfer of quotas (“participaciones”) or shares, the shareholders' continued membership, funding obligations or exit mechanisms. The key is to understand that the articles form part of the company's “ordenamiento interno” —its internal body of rules— and are enforceable erga omnes within their perimeter, whereas the parasocial agreement is a contract between shareholders, valid and effective between the parties but not necessarily against the company or against third parties. An obligation that is perfectly valid between shareholders does not for that reason produce the same effects at the corporate or registry level. When conflict arises, problems of enforceability against the company, abuse of rights, challenges to resolutions and liability between shareholders come to the surface, which makes it particularly important to decide from the outset which arrangements should remain in the agreement and which are better moved into the articles.

29/01/2026

Corporate and commercial Property and contract law Litigation

1.Different natures, different levels: the articles as corporate rule and the shareholders' agreement as contract

The articles of association, approved in the deed of incorporation or by a resolution amending the articles, are the basic rule governing the organisation of a capital company. The “Ley de Sociedades de Capital” —Spain's Companies Act, the LSC— requires them to contain, at the very least, the company's name, its corporate purpose, its registered office, its capital and the structure of that capital, the way in which the management is to be organised and the way in which collective bodies are to deliberate and adopt resolutions. It further allows the deed and the articles to include all the covenants and conditions that the founding shareholders consider appropriate, provided that they are not contrary to the law and do not contradict the defining principles of the company type chosen. Once registered, the articles bind the company, present and future shareholders and the company's organs, and are enforceable against third parties on the terms laid down by the registry system.

The shareholders' agreement or “pacto parasocial” —the parasocial agreement— is, for its part, a contract between some or all of the shareholders, founded on the freedom of contract of article 1255 of the “Código Civil”, Spain's Civil Code, which allows contracting parties to establish such covenants, clauses and conditions as they see fit, provided that they are not contrary to the law, to morality or to public policy. The LSC expressly acknowledges its existence by providing that covenants kept private between the shareholders shall not be enforceable against the company. The consequence is clear: the parasocial agreement is fully valid and effective between its signatories, but it does not automatically become part of the “ordenamiento” —the internal body of rules— of the legal person, nor does it bind the company as such, save in specific cases or where the company itself is a party to the agreement.

This duality of levels explains why the same matter may be governed differently in the articles and in the agreement, and why the legal answer to a conflict is not uniform. At the corporate and registry level, the articles prevail; at the internal contractual level, the agreement does.

2.The internal effect of the agreement: the force of law between the parties and the limits of its enforceability against the company

As a contract, the shareholders' agreement is governed by the general rules of the Civil Code. Obligations arising from contracts have the force of law between the contracting parties and must be performed according to their terms. The agreement binds its signatories, who may require performance from one another, claim damages for breach, agree penalty clauses or set up forced-exit mechanisms, always within the limits of the law, morality and public policy. Article 1257 of the Civil Code makes clear that contracts take effect only between the parties who enter into them and their heirs, save where there is a stipulation in favour of a third party. The company, where it is not a party to the agreement, is a third party in relation to that contract.

The rule of unenforceability against the company laid down in article 29 of the LSC, under which covenants kept private between shareholders shall not be enforceable against the company, means that the shareholders cannot use the company's organs as a tool to sanction breach of the agreement, for instance by expelling the shareholder in breach where the ground for expulsion is not provided for in the articles or in the law. Nor can they challenge company resolutions merely because those resolutions run counter to the agreement, if they comply with the law and with the articles. The sanction for breach of the agreement operates at the contractual level: liability in damages, specific performance where possible, enforcement of penalty clauses, call or put options, and so on.

Academic commentary and case law have qualified this rule in cases of omnilateral agreements, signed by all the shareholders, or where the company is a party to the agreement. In such cases it has been argued that the company's interest coincides with the interest of all the shareholders, and that a challenge to resolutions giving effect to the agreement may be contrary to good faith and to the doctrine of “actos propios”, the bar on going against one's own previous conduct. But even in those cases the statutory rule of unenforceability calls for caution: the agreement does not automatically become part of the articles, and the route for challenging resolutions remains breach of the law, of the articles or of the company's interest, not mere inconsistency with the agreement.

3.Voting, transfer, lock-in and funding: typical divergences between the agreement and the articles

In practice, shareholders' agreements tend to govern in greater detail and with greater flexibility matters that the articles deal with in a more rigid or standardised way. On voting, the agreement frequently provides for syndication undertakings, arrangements to vote as a block on certain decisions, cross-vetoes or enhanced majorities for strategic transactions. The articles, by contrast, confine themselves to the statutory majority rules and, where appropriate, to enhanced majorities for certain matters. If a shareholder votes at the general meeting against what was agreed, the company resolution may be valid if it complies with the articles and with the law, but the shareholder may incur liability towards the other contracting parties for breaching the agreement.

On the transfer of quotas or shares, the articles usually contain restriction or consent clauses, especially in closely held companies, but the agreement may add pre-emption rights, tag-along or drag-along rights, a minimum lock-up period or coordinated exit mechanisms. If a shareholder transfers their quotas in breach of the agreement but in compliance with the articles, the company may be obliged to enter the transfer in the register of members, while the shareholder in breach will be liable to the others for infringing the agreement. The unenforceability of the agreement against the company prevents it from refusing registration merely because the transfer runs counter to the agreement, unless the company is a party to it and the restriction has been built into the articles.

Lock-in and funding obligations are another focus of divergence. The agreement may impose on the shareholders undertakings not to exit for a given period, not to compete, to make additional capital contributions or to grant participating loans, none of which appear in the articles. If a shareholder decides to sell or not to take up a capital increase, the company cannot prevent this beyond what the law and the articles provide, but the other shareholders may hold that shareholder liable for breaching the agreement, trigger drag-along clauses, compulsory call options or financial penalties. The effectiveness of these clauses is played out at the contractual level, not at the corporate one.

4.Conflict between the agreement and the articles: what can actually be required, and by what route

Where the agreement and the articles say different things, the key question is what can actually be required of the shareholders, and by what route. At the company-law level, the company's organs must apply the law and the articles. A company resolution adopted in accordance with the articles and with the law cannot be challenged merely because it contradicts the agreement. An action to challenge a resolution requires breach of a mandatory rule, of the articles or of the company's interest. The agreement may serve as an aid to interpreting the company's interest in omnilateral agreements, but not as an autonomous benchmark for the validity of resolutions.

At the contractual level, by contrast, the agreement deploys its full force. If a shareholder votes against what was agreed, transfers quotas in breach of agreed restrictions, leaves the company before the end of the lock-in period or fails to provide the funding undertaken, the other shareholders may require performance of the agreement, claim damages, enforce penalty clauses or trigger forced-exit mechanisms, provided that the clauses are valid and do not infringe mandatory rules. The company, unless it is a party to the agreement, is not the party against whom those actions lie, even though it may be indirectly affected by their effects.

Good faith and the prohibition on abuse of rights play a significant part here. Article 7 of the Civil Code requires rights to be exercised in accordance with the demands of good faith and denies protection to the antisocial exercise of a right. A shareholder who relies on the unenforceability of the agreement against the company in order to vote at the general meeting against what they have agreed with the others may commit an abuse of rights at the contractual level, even though the company resolution is valid. Conversely, the shareholders cannot use the agreement to hollow out mandatory rules of company law or to circumvent the protection of third parties.

5.Why it matters to decide what goes into the articles and what stays in the agreement

Experience shows that many conflicts between the agreement and the articles stem from a poor initial decision as to which arrangements should be moved into the articles and which are better kept in the agreement. Clauses affecting the functioning of the company's organs, the adoption of resolutions, the majority structure, restrictions on the transferability of quotas or shares and the grounds for the expulsion or withdrawal of shareholders should, if they are to be relied on against the company and against all the shareholders, be incorporated into the articles, within the limits set by law. Only then will they be enforceable against the company, against future shareholders and against third parties, and only then can they serve as a basis for challenging resolutions or for refusing registrations.

The shareholders' agreement, by contrast, is the natural place to govern more flexible, confidential or tailor-made matters, such as funding undertakings between particular shareholders, staged exit mechanisms, earn-out clauses, special remuneration, non-compete covenants or dispute-resolution rules. Such clauses may be difficult to fit into the articles because of their complexity, their personal character or their potential clash with mandatory rules. Keeping them in the agreement allows their content and their confidentiality to be calibrated, at the cost of giving up their enforceability at the corporate level.

The decision is not purely technical, but strategic. Moving too many clauses into the articles can make the running of the company rigid and require enhanced majorities for any change, besides exposing those clauses to scrutiny by the Registry. Leaving in the agreement matters that ought to be in the articles can generate conflicts over enforceability against the company and narrow the tools available to react to breaches. The key lies in identifying which rules must bind the company and all its shareholders, present and future, and which are conceived as inter partes undertakings between particular shareholders.

6.Conclusion: two levels, two logics and one initial strategic decision

Where the shareholders' agreement and the articles say different things, there is no single answer as to which of them “prevails”. At the company-law level, the law and the articles prevail; at the contractual level, the agreement prevails between its signatories. An obligation that is valid between shareholders does not necessarily produce the same effects against the company or against third parties. A shareholder may be required to compensate the other contracting parties for voting against what was agreed, even though the company resolution is valid; the company may be obliged to register a transfer that complies with the articles, even though it infringes the agreement; a shareholder may be bound to remain or to provide funding under the agreement, even though the law grants them rights of withdrawal or a right not to subscribe.

Problems arise when conflict breaks out and an attempt is made to rely on the agreement at the corporate level, or on the articles at the contractual level. The rule of unenforceability, good faith, abuse of rights, the “actos propios” doctrine and the way omnilateral agreements are structured qualify the solutions, but they do not remove the duality of levels. That is why it is crucial to decide from the outset which arrangements should remain in the agreement and which are better moved into the articles. A coherent architecture between the articles and the agreement, alive to their different levels of effectiveness, reduces the risk of conflict and gives shareholders a safer framework within which to require, at each level, what they can legitimately expect from the company and from the other shareholders.

Alburquerque AbogadosJosé Manuel AlburquerqueBarcelona 29/01/2026

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