The background of the court case: the seller of a share in the authorized capital of a limited liability company entered into a preliminary contract for the sale of the share with the buyer with the notarized consent of the spouse both for the sale of the share and for the conclusion of a preliminary agreement.
Under the terms of the preliminary contract, the parties undertook to enter into the main contract for the sale of the share in the future. After the conclusion of the preliminary contract, the seller's spouse stated that she did not give her consent to the conclusion of the main contract for the sale of the share on the terms of the preliminary contract and withdrew first her consent to the conclusion of the preliminary contract and later - to the sale of the share, in connection with which the seller avoided concluding the main contract with the buyer. This was the reason for the latter's appeal to the court with a claim to compel the conclusion of the main contract of sale of the share. In turn, the seller filed a counterclaim to recognize the concluded preliminary agreement as invalid, concluded on bonded terms and under the influence of deceit.
The courts of the first, second and third instances refused the seller’s claims, indicating the impossibility of forcing the seller to alienate a share in the authorized capital of the company with a violation of the right of joint ownership of the spouses, as the consent of the spouses to the alienation of the share and the conclusion of the preliminary agreement were withdrawn. The courts also rejected the seller's claim, pointing to the lapse of the limitation period. Disagreeing with the lower courts, the buyer appealed to the Supreme Court of Russia to review these judicial acts in part of her claim, referring to significant violations of substantive law norms committed by the courts.
The Supreme Court of the Russian Federation considered otherwise. Civil legislation contains no provisions regulating the withdrawal of prior consent to a transaction. The essence of family relations does not exclude the possibility of withdrawal of such consent given by one of the spouses, for example, in connection with a change in the interests of the family, the occurrence of circumstances leading to the loss of the consent of the spouses regarding the disposal of their common property. At the same time, the possibility of withdrawal of prior consent to a transaction may not be unlimited in time, since such action may affect the rights of other parties to the turnover arising from the consent previously given by a third party. Withdrawal of consent, the notice of which was received by the parties to the transaction after its execution, shall be deemed to have failed[1]. Revocation of a preliminary consent after the transaction has been made, as well as revocation of a subsequent consent (approval) may not serve as a basis for recognizing the transaction invalid. The possibility of withdrawal of prior consent is lost from the moment when it has affected the legal relations of other parties to the turnover, namely, served as a basis for the emergence of their rights and obligations under the contract. Withdrawal of consent is allowed before the parties, based on the consent of a third party, have entered into a contractual relationship. Therefore, withdrawal of the spouse's consent after the conclusion of the preliminary contract has no legal consequences, the main contract must be concluded. The spouse's consent contained an indication that her spouse was entitled to sell the share for a price and under conditions at his own discretion, so the arguments of the counterclaim also cannot be taken into account.
Information source: Ruling of the Supreme Court of the Russian Federation of 09.08.2022 Nu. 307-ES22-6562 in case Nu. A26-7222/2020.
[1] Par. 57 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.06.2015 Nu. 25 “On the application by the courts of certain provisions of Section I of Section I of Part I of the Civil Code of Russia”.
Under the terms of the preliminary contract, the parties undertook to enter into the main contract for the sale of the share in the future. After the conclusion of the preliminary contract, the seller's spouse stated that she did not give her consent to the conclusion of the main contract for the sale of the share on the terms of the preliminary contract and withdrew first her consent to the conclusion of the preliminary contract and later - to the sale of the share, in connection with which the seller avoided concluding the main contract with the buyer. This was the reason for the latter's appeal to the court with a claim to compel the conclusion of the main contract of sale of the share. In turn, the seller filed a counterclaim to recognize the concluded preliminary agreement as invalid, concluded on bonded terms and under the influence of deceit.
The courts of the first, second and third instances refused the seller’s claims, indicating the impossibility of forcing the seller to alienate a share in the authorized capital of the company with a violation of the right of joint ownership of the spouses, as the consent of the spouses to the alienation of the share and the conclusion of the preliminary agreement were withdrawn. The courts also rejected the seller's claim, pointing to the lapse of the limitation period. Disagreeing with the lower courts, the buyer appealed to the Supreme Court of Russia to review these judicial acts in part of her claim, referring to significant violations of substantive law norms committed by the courts.
The Supreme Court of the Russian Federation considered otherwise. Civil legislation contains no provisions regulating the withdrawal of prior consent to a transaction. The essence of family relations does not exclude the possibility of withdrawal of such consent given by one of the spouses, for example, in connection with a change in the interests of the family, the occurrence of circumstances leading to the loss of the consent of the spouses regarding the disposal of their common property. At the same time, the possibility of withdrawal of prior consent to a transaction may not be unlimited in time, since such action may affect the rights of other parties to the turnover arising from the consent previously given by a third party. Withdrawal of consent, the notice of which was received by the parties to the transaction after its execution, shall be deemed to have failed[1]. Revocation of a preliminary consent after the transaction has been made, as well as revocation of a subsequent consent (approval) may not serve as a basis for recognizing the transaction invalid. The possibility of withdrawal of prior consent is lost from the moment when it has affected the legal relations of other parties to the turnover, namely, served as a basis for the emergence of their rights and obligations under the contract. Withdrawal of consent is allowed before the parties, based on the consent of a third party, have entered into a contractual relationship. Therefore, withdrawal of the spouse's consent after the conclusion of the preliminary contract has no legal consequences, the main contract must be concluded. The spouse's consent contained an indication that her spouse was entitled to sell the share for a price and under conditions at his own discretion, so the arguments of the counterclaim also cannot be taken into account.
Information source: Ruling of the Supreme Court of the Russian Federation of 09.08.2022 Nu. 307-ES22-6562 in case Nu. A26-7222/2020.
[1] Par. 57 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.06.2015 Nu. 25 “On the application by the courts of certain provisions of Section I of Section I of Part I of the Civil Code of Russia”.