First of all, we must understand that the corporation, its operation and organization are regulated by the General Law of Mercantile Corporations, legislation which establishes that this corporation operates through shares, which are defined as "securities representing the capital stock of a mercantile corporation, through which the person who owns them acquires economic and corporate rights".
What does each of these rights refer to? First of all, economic rights are defined as those granted to the acquirer of the shares in order to obtain the right to receive a proportional part of the profits generated by the company of which it is a member.
Corporate rights are considered as such the right to vote in the decisions of the meeting that will define the future of the company, to attend and call meetings to discuss issues relevant to the fulfillment of the corporate or structural purpose, the right of first refusal in case another shareholder assigns its rights, among others. However, it is important to take into account that these rights arise from the fact that the shareholder has already covered the total value of the shares acquired, since, in this type of company, this is the only obligation that the shareholder has towards the company.
So, what happens when the shareholder fails to comply with the only obligation he has, i.e. the full payment of his shares?
The law is quite clear with the share subscription process and the first thing it tells us is that in order for the company to deliver the shares to us and for us to be able to exercise our shareholder rights, the value granted to the shares must be completely covered within the term provided by the parties, which in no case may exceed 1 year.
Exceeding this term has consequences, and the main one is that once this term expires, the company will have the authority to demand the payment, or proceed to the sale of the shares that have not been covered by the shareholder, the sale must be made through a licensed public broker and the proceeds of the sale must be applied to the payment of the exhibition of such shares. If the sale results in an amount greater than the amount to be covered, then the remainder may be used to cover the expenses generated by the sale of the shares, as well as the interest on the amount of the exhibit that was not covered in due time and form. Once these amounts have been settled, then the former shareholder may exercise its right to claim the remaining amount, if any, provided that it does so within one year from the date on which the shares were sold.
For the exercise of this power of sale, the corporation will have a term of 30 days, which will begin to be computed once the term granted to the shareholder has expired or, alternatively, the maximum term of one year, if after that time, the corporation has not been able to carry out any of the resolutions, i.e., the judicial demand for payment or the sale of the shares to cover the missing amount, then it must proceed to the due reduction of the capital.
Finally, we must also take into account that there are shares that can be paid in whole or in part by contributions in kind, these shares must be deposited in the company for two years. If during this period it should happen that the value of the assets is less than twenty-five percent of the value for which they were contributed, the shareholder is obliged to cover the difference to the company, which will have a preferential right over any creditor on the value of the deposited shares.
