The Superintendency of Companies responded to a question regarding the possibility that a simplified stock company (SAS) may issue shares to two different people, granting the usufruct over them to one and the bare ownership to the other.
The entity clarified that Law 1258 of 2008 does not establish anything regarding the usufruct of shares and, therefore, one must be governed by the provisions of the corporate bylaws. If these in turn do not provide anything in this regard, one must attend to the provisions of articles 410 and 412 of the Commercial Code in the field of corporations, by virtue of which the shares of a SAS can be perfectly subject to usufruct.
Notwithstanding this, article 10 of Law 1258 provides for the possibility of different types and series of shares, including (i) privileged shares, (ii) shares with preferential dividend and without voting rights, (iii) shares with fixed annual dividend, and (iv) payment shares, in accordance with the terms and conditions provided in the respective legal regulations.
Regardless of the corporate type, any issuance of shares by a company implies ownership over them, or in other words, the property granted to each shareholder, since each share grants rights and, at the same time, the company undertakes to recognize the shareholder as such and to deliver the corresponding certificate.
The legislation regarding the issuance of shares contemplates the possibility of establishing special rights of the shareholder against the company, such as receiving a preferential dividend or multiple voting, among many others, but from a legal point of view it is not possible to issue shares under usufruct, since that goes against the rules on issuance and subscription of shares, clarified the Superintendency of Companies.
A different matter is that, once the shares are issued, the shareholder, exercising the inherent rights granted by their ownership over them, decides to sell them or deliver them in whole or in part in usufruct.
LABOR LAW.