6.8.2 Revocable, provisionally enforceable, irrevocable

Under former BV law, an order for the transfer of shares could only be executed after a judgment had become irrevocable. It was not possible to have the judgment declared provisionally enforceable.1 Nowadays, it is possible to declare a judgment provisionally enforceable and that signifies a great step forward.2 By denying the possibility to have a judgment declared provisionally enforceable, an opportunity was created for the defendant to delay the transfer of the shares as long as procedural roles would permit.

The judgment rewarding a claim onder the exit proceedings and regarding the determination of the price of the shares can be declared provisionally enforceable. Consequently, the shares can be transferred even though the judgment is not yet irrevocable and even though appeal is started. In the situation that a judgment is not declared provisionally enforceable at the time the judgment is delivered, a party may request the court to have the judgment declared provisionally enforceable in a later stage. This option is given by Art. 234 Rv.

If subsequently the judgment is annulled (vernietigd) in appeal, the transfer of the shares stil remains legally binding. The same applies if the judgment is annulled in cassation.3 Art. 2:341a paragraph 1 DCC jo. Art. 2:343b DCC provide that the legal cause (rechtsgrond) of the transfer will not be affected by the annulment of the judgment ordering the exit. Art. 2:341a paragraph 1 DCC further clarifies that the consequence of annulment of the judgment means that the transferor and transferee are obliged to reverse all consequences (verbintenis tot ongedaanmaking) of the annulled judgment. More specific, the shares have to be transferred back to the initial shareholder and the consideration for the shares must be refunded.4

I approve of this rule, as it creates certainty about who is to be considered as shareholder of the company. Annulment of the judgment does not imply that the initial shareholder before transfer would again become shareholder with retrospective effect. Consequently, it safeguards the validity of resolutions adopted by the general meeting, which otherwise would turn out to be null and void. This is of importance, because resolutions may affect rights of third parties.5 Moreover, it prevents difficulties with respect to the question what to do with distributions of profits or any further transfers of shares that have been realized before annulment of the judgment.

In the situation that parties have the obligation to reverse all consequences stemming from statute, Art. 2:195 paragraph 6 DCC applies. The laffer provision stipulates that neither a right of first refusal based on Art. 2:195 paragraph 1 DCC, nor restrictions on the transfer of shares contained in the articles of association apply if the shareholder is obliged by law to transfer his shares to a former holder. In this situation, the obligation by law is embodied in Art. 2:341a paragraph 1 DCC.

Art. 2:341a paragraph 2 DCC offers exceptions to the rule that parties are obliged to reverse all consequences of the annulled judgment. The court may limit the obligation for reversal or may even order that no reversal will take place, if (i) reversal is exceedingly onerous or (ii) fürness requires another solution than reversal. Furthermore, the court has the discretion to flexibly deal with the pecuniary consequences of non-reversal. In the situation that reversal is limited or denied by the court, it may order that a party that is advantaged by the non-reversal must make payment to a party that is disadvantaged by the nonreversal. This rule is found in Art. 2:341a paragraph 2 DCC, second sentence. The rule enables the court to flexibly deal with the situation, for instance in the situation parties are satisfied with being no longer co-shareholders with ongoing conflicts. According to the legislative history, application of this rule could also be practical when the shares are already transferred bona fide to a third party.6 Again this rule can be seen as an elaboration of the principles of reasonableness and fürness, as referred to in Art. 6:2 paragraph 2 DCC.7

Although the obligation to reverse all consequences of the judgment does not affect the validity of resolutions that are already adopted, it may have an impact on these resolutions. The obligation may imply that the shareholders are onder the obligation to reverse resolutions as much as possible and for practical reasons for as far as desired. In the situation shareholders do not or do not sufficiently cooperate with the reversal of resolutions, at the request of the prejudiced shareholder the court has the discretion to interfere on the basis of Art. 2:341a paragraph 2 DCC.