Pledging of Shares and Exercise of Shareholder Rights: Scope of Statutory Autonomy

The General Directorate of Legal Security and Public Trust (the “DGSJFP”) has recently addressed the scope of statutory autonomy with respect to pledged shares. In its Resolution of April 28, 2026, the Directorate General confirms that articles of incorporation may modify the general rule under which the owner of pledged shares is entitled to exercise shareholder rights, attributing such exercise to the pledgee under certain circumstances.

The issue at hand

Article 132.1 of the Capital Companies Act (the “LSC”) provides that, unless otherwise provided in the articles of incorporation, in the event of a pledge of shares, the owner is entitled to exercise shareholder rights.

A limited liability company agreed to include a clause in its articles of incorporation stating the following:

“In the event of a pledge of shares, the pledgee shall be entitled to the shareholder rights corresponding to the pledged shares from the moment the pledgor and the company are notified through a notary public of an alleged default on the secured obligation, provided that (i) the judicial enforcement of the pledge has been admitted for processing; or (ii) in the case of notarial enforcement, the service of process on the debtor is reliably proven. Until such notification is given, the shareholder’s rights shall remain with the pledgor.”

The corporate registrar refused to register the clause, reasoning that the assignment to the pledgee of the economic rights associated with the shares could be contrary to the nature of the pledge as a security interest and could give rise to an unjust enrichment.

The decision of the General Directorate

The DGSJFP grants the appeal and revokes the registry’s ruling based on three main considerations:

1. The articles of incorporation may modify the general rule of Article 132.1 of the LSC

The general rule set forth in Article 132 of the LSC assigns the exercise of shareholder rights to the owner of the shares, but expressly permits the articles of incorporation to provide otherwise.

This provision constitutes a specific manifestation of the freedom of contract recognized in Article 28 of the LSC, pursuant to which the articles of incorporation may include the agreements and conditions that the shareholders deem appropriate, provided they are not contrary to the law or to the principles governing the corporate form.

Therefore, the DGSJFP considers it possible for the articles of incorporation to modify the general rule and grant the secured creditor the right to exercise all rights arising from shareholder status or only some of them.

The main clarification in the ruling lies in defining the scope of this clause’s effects.

2. The modification affects the exercise of rights, not ownership

The DGSJFP notes that the creation of a pledge does not alter ownership of the shares or shareholder status. The owner remains the holder of the rights corresponding to that status. However, Article 132.1 of the LSC permits a modification of this general rule.

Thus, the secured creditor may be entitled to exercise the rights corresponding to a shareholder vis-à-vis the company, but this does not mean that the creditor acquires shareholder status. While the secured creditor is entitled to the rights provided for by law or the articles of incorporation, ownership of those rights is transferred only along with shareholder status itself through one of the mechanisms provided for by law.

Therefore, when the provision to the contrary set forth in Article 132.1 applies, it is limited to the exercise of the rights corresponding to a shareholder and only for as long as the pledge situation provided for in the bylaw provision persists. Member status is not altered by the pledge of shares or interests, without prejudice to the fact that the exercise of the rights inherent in such status belongs to the pledgee as long as the real right of pledge persists and under the terms set forth in the provision of the articles of association.

3. The clause must be interpreted based on its content and the provision as a whole

Although the General Directorate acknowledges that the wording of the clause could have been more precise—by stating that the “member’s rights” would belong to the creditor, rather than referring to the exercise of those rights—it considers that this does not justify its rejection for registration.

The clause itself linked its application to the initiation of enforcement proceedings under the pledge, which could eventually lead to a transfer of the “ ” status as a member. However, this does not imply that the mere activation of the clause results in such a transfer.

Applying the rules of contract interpretation, the General Directorate concludes that the clause must be interpreted in accordance with the law: the creditor is entitled to exercise the rights inherent to the status of partner in accordance with the provisions of Article 132.1 of the LSC.

In conclusion…

• Article 132.1 of the LSC allows for flexible statutory provisions regarding the exercise of rights corresponding to pledged shares or stock, including the assignment of such rights to the pledgee under certain circumstances.
• The right to exercise such rights does not equate to ownership of those rights.
• Including these provisions can be particularly useful in financing transactions, as they allow the rules governing the exercise of rights during the default and enforcement phases to be set forth in the articles of incorporation.

Every corporate decision requires certainty and foresight. At Ayuela Jiménez, we work to ensure that your agreements translate into peace of mind and confidence in your company’s future. Let’s talk!