Substitute declaration for share transfers: How to secure your rights despite missing assignments
The challenge of missing assignment declarations for share transfers in Switzerland
Introduction
The legally valid transfer of shares issued and managed as uncertificated securities is an important legal requirement for Swiss stock corporations. The declaration of assignment, also known as an assignment, plays a central role here. But what happens if these important documents cannot be found? This blog post sheds light on the problem and shows possible solutions.
Table of contents
- The problem of missing declarations of assignment
- Solutions according to Swiss legal practice
- Requirements for a replacement declaration
- Konsento: Electronic share register for legally compliant transactions
The problem of missing declarations of assignment
If old declarations of assignment, also known as assignments, can no longer be found, this creates a sensitive gray area for the Swiss stock corporations concerned. First of all, it is questionable whether the original purchaser even became the owner of the shares in question and acquired shareholder status with all the associated shareholder rights. Furthermore, there is a risk that all subsequent transactions involving the same shares could be considered invalid. The so-called chain of ownership is thus interrupted, which means that ownership of and shareholder rights from these shares may never have been transferred to the subsequent purchaser. An incomplete chain of ownership therefore represents a potentially serious situation for all parties involved and will make a subsequent sale of the company more difficult or even impossible.
Solutions according to Swiss legal practice
Swiss legal practice offers three main approaches to solving this problem:
- Search for copies of the original assignment declaration: The first step is to search intensively for copies of the original assignment declaration from all parties involved.
- Subsequent creation of the assignment: If no copies are found, an attempt can be made to create the assignment declaration for the share transfer in question retrospectively. However, this only works under certain conditions: if the seller is a natural person, they must still be alive and capable of acting. If the seller is a legal entity, the same persons must be authorized to sign and represent the company as at the time of the original share transfer. However, a retroactively signed declaration of assignment by a new generation of managing directors or board members authorized to represent the company is not legally possible.
- Substitute declaration: If the first two options are not possible, a third solution comes into play: The current authorized signatories of the company selling the shares issue a declaration confirming the historical transaction.
Requirements for a replacement declaration
Such a replacement declaration must be carefully formulated and should contain the following elements:
- Identification of the parties: Exact details of seller and buyer.
- Identification of the issuer and the shares: Detailed information on the stock corporation that issued the shares and on the type of shares, the par value and any preferential rights of the shares concerned.
- Transaction details: Information on the number of shares transferred and the date of the transaction.
- Confirmation of legality: Confirmation that the transfer was carried out properly and formally correct.
- Declaration on the whereabouts of documents: Determination that the original declaration of assignment cannot be found.
- Legal affirmation: Declaration that this document is intended to serve as a substitute.
- Formal elements: Date, signatures and company stamp, if applicable.
- Additional information: Any references to supporting documents or witnesses.
- Legal reservations: Reference to the preparation to the best of our knowledge and belief.
Konsento: Your digital share register for legally compliant processes
Efficient and legally compliant processing of share transfers
With Konsento's digital share register, you can ensure that all company share transactions are documented in a legally compliant manner. The system alerts you to the fact that a declaration of assignment is required for the transfer and provides you with a practical template that meets legal requirements.
Sustainably securing the chain of ownership
In Konsento, you can link declarations of assignment that are complete and correctly signed directly to the corresponding transactions in the register. This means that the documentation of your share transfers remains traceable and legally valid at all times. An incorrect or incomplete chain of ownership poses considerable risks for a company - Konsento helps you avoid this challenge.
Automated creation of missing documents
An outstanding advantage of Konsento is the ability to analyze existing ownership chain data and automatically identify gaps. If declarations of assignment are missing, you can generate them directly via the system - efficiently and en masse, if necessary. Even if documents are still missing after automation, Konsento offers support in cooperation with specialized law firms to restore a complete ownership structure.
Individual solutions for missing declarations of assignment
If declarations of assignment cannot be created in full, even retrospectively, Konsento offers flexible approaches: With just a few clicks, you can create replacement declarations that are signed by the affected sellers. Konsento coordinates the entire process and ensures that your chain of ownership remains as complete as possible.
Competent support for complex cases
If your case is particularly challenging, you can count on Konsento's expertise. Together with external lawyers, we develop tailor-made solutions to quickly and effectively restore the legal security of your chain of ownership. Konsento is by your side every step of the way so that you can concentrate on the essentials.
Conclusion
The problem of missing declarations of assignment in share transfers in Switzerland is complex, but solvable. With proactive action and the right technical support, such as Konsento's electronic share register, companies can minimize legal risks and ensure the integrity of their share transfers.
You can now alternatively register for the free share register of Konsento and check for gaps yourself at the end of the process. Or you can use a Book a non-binding and free consultation appointment with the Konsento teamif you already know that your share register has gaps in the chain of ownership and you would like to discuss the next steps.
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