| The Supreme Court comes back to the relationship between the preliminary and final contracts in the framework of shares sale transactions, reiterating the principle that “the non-reproduction, in the final share transfer contract, of a clause already included in the preliminary one does not necessarily imply the renunciation of the previous agreement, which is not absorbed where there are elements to the contrary deducible from the deeds or provided by the parties“. The principle does not represent a novelty, as it has already been enshrined, for instance, in Cass. 22984/2014. However, the very recent order no. 662/2022 of the Supreme Court offers a starting point for some reflections. The first one is evidentiary, since the ground of the judgement under review seems to implicitly establish the principle that, where the clauses contained in the preliminary are not reproduced in the definitive, it must be presumed that they have been superseded, unless the party that claims for its application, does not prove that the intention of the parties was different. In its argument, in fact, the Supreme Court reasons in negative terms, pointing out that the Court of Appeal had correctly investigated whether, in the concrete case, “there were elements demonstrating the parties’ intention not to renounce the non-competition agreement“. This ruling therefore confirms how crucial in the contractual technique is the need to recall and save, through referral clauses or through their unequivocal reproduction, the agreements contained in the SPA intended to survive the execution. In addition, it confirms how the risks that characterize extraordinary transactions make it essential relying on qualified professionals who know how to spot and manage them. The second one concerns the eventuality of a prohibition of competition of legal origin on the shares’ seller, which the order under review addresses in a different, but related ground of appeal. Well, on this point, the Supreme Court reaffirms that art. 2557 of the Italian Civil Code, which imposes a five-year non-competition ban on the company’s seller, also applies to the sale of shares “when it substantially produces the replacement of one subject by another in the company“. In the case covered by the Order under review, the occurrence of such a circumstance was excluded on the grounds that the buyer had, even before the alienation, a significant stake in the company and a managerial role within it. This last step requires some broader reflections, regarding the not simple relationship between business and equity transfers. It is necessary, for example, to consider the issue of liability for business debts, which is essentially unrestricted in the case of share transfers but, on the other hand, subject to restrictions in the case of business transfers (including the fact that debts result from the accounting records). Similarly, on the fiscal perspective, responsibilities for tax liabilities are differentiated depending on whether the transfer involves shares or companies. Finally, we draw attention to some precedents, arising as a result of fiscal audits conducted by the Agenzia delle Entrate (the Italian Revenue Agency) and regarding registration tax (Presidential Decree 131/86). On that occasion, a proportional registration tax of 3%, rather than a flat tax, was charged on share transfers similar to the one under comment. This approach was based on the claimed possibility of applying different taxation for registry purposes through the mere investigation of a different “negotiating intention” from the formal terms of the agreement. These positions, which undoubtedly created a non-acceptable level of uncertainty in transactions, should currently be overcome by the recent amendments that have occurred to Article 20 of Presidential Decree 131/86, which reaffirms the nature of the registry as a deed tax. |
| by Nicolò Manzini and Cristiano Lenti |
