Corporations: registration of acts granted by attorneys that are not registered
It is well-known that, in the field of representation of mercantile companies, the general powers are obligated to be inscribed in a sheet that is open to every company in the Mercantile Registry and that, when it comes to special powers, their inscription is optional (ex art. 94.1. 5 of the Regulations of Mercantile Registry). However, is it possible to carry out the inscription of a act of obligatory inscription by another attorney of the same company whose power is not inscribed in the social sheet?
Let us take, as an example, the pretension to enroll the revocation of a power inscribed in the Mercantile Registry that is granted by another attorney of the same company whose power is not inscribed in the social sheet. In a first analysis, we can arrive at the following conclusions:
- As it regards a special power (for the revocation of the power, purpose of the deed), its inscription in the Mercantile Registry is not mandatory, and although in the case of general powers, the circumstance of their inscription being obligatory does not make it constitutive.
- The accreditation of the faculties of the granting attorney according to provisions in article 98 of the Law 24/2001, of December 27, of Fiscal, Administrative, and Social Order Measures, by the Notary intervening in the act of revocation that will be sufficient, by themselves, of the accredited representation, without the registrar being able to request that the document from which the representation was born may be transcribed or accompanied by it.
- The validity of legal negotiation about the revocation of power does not depend on its inscription in the Mercantile Registry because, once the will to revoke is formally expressed and notified to the attorney, the effects foreseen in article 1735 of the Civil Code come into force.
Then we could understand that the validity of the inscribed revocation of power does not depend on the previous inscription in the Mercantile Registry of the power of the grantor because it considers that the judgment of sufficiency of the authorizing notary is exempt from whatever other consideration and because, if the previous inscription was demanded, then the character of constitutive inscription would be given to the same, against the foresight of the order, especially in the field of a special power that is not subject to an obligatory inscription.
These conclusions were the allegations made by a company in the appeal filed against the qualification note extended by the Mercantile and Personal Property Registry nº3 of Madrid suspending the inscription of a public deed of revocation of power for not being recorded by the attorney that granted said deed.
In a resolution of 20 April 2017 (BOE 12 May 2017), the General Body for Registries and Notary (“DGRN”, its Spanish acronym) dismisses the appellant´s claim on the basis of the principle of chain of succession foreseen in Article 11 Regulation of the Mercantile Registry, because it is understood from the simple reading of the precept that, in headquarters of the Mercantile Registry, the principle of chain of succession is articulated on a triple level:
- On a first level, demanding the previous inscription of the inscribable subject to take reason of the same acts that they refer to.
- On a second level, demanding the previous inscription of an act referred to as an inscribable subject so that it can proceed to the inscription of its modification or cancellation.
- At a third level, demanding the prior inscription of administrators or attorneys in order to enroll the same acts granted by them.
In this sense, the Executive Center recalls that the principle of chain of succession constitutes the legal mechanism determined by the order to preserve the consistency of the contents of the Mercantile Registry, so that the contents of the Registry cannot be modified by a person who does not prove to have the qualifications to do so (ex articles 11.3, 108.2 and 109.2 of the Registration Mercantile Registry).
In conclusion, the DGRN determines, attending to the literality of Article 11.3 of the Regulations of Mercantile Registry and the reiteration that the registry principle of the chain of succession is to be subject of a restrictive interpretation for a registry of persons, like the Mercantile Register, that acts granted by an attorney without previously inscribed power that enables him to do so, shall not be registered.
Written by Belén Berlanga, Partner and Lawyer