The Quota-Holder Of A Limited Liability Company ('S.R.L.') Can Effectively Exercise Its Right Of Option On The Capital Increase By Offsetting The Relevant Debt

The quota-holder of a limited liability company ("s.r.l.") can effectively exercise its right of option on the capital increase by offsetting the relevant debt with his eventual credit towards the company which is subordinated pursuant to art. 2467 of the Italian civil code?

The Business Division of the Court of Rome, addressing - from what we can gather, for the first time - a topic little explored also among the Scholars, recently excluded that the quota-holder of a limited liability company ("s.r.l.") can effectively exercise its right of option on the capital increase by offsetting the debt due to the contribution with his eventual credit towards the company which is subordinated pursuant to art. 2467 of the Italian civil code

The facts:

the meeting of a limited liability company ("s.r.l.") approves a capital increase; a quota-holder exercise its right of option on the capital increase by declaring his will to offset the relevant debt with his credit towards the company arising from a loan that he previously granted the company; the director of the company refuses to proceed with the release of the quota subscribed, by registering with the Register of Companies the decision to increase the capital without taking into account the subscription made by the quota-holder in question; the quota-holder in question appeal pursuant to art. 700 of the Italian code of civil procedure, with an interim proceedings, claiming for an order of proceeding with the execution to the capital increase decision; the Court order the company to execute the capital increase decision; the company appeals against the interim order, submitting to the Panel of Judges the question referred to in the title of this note, i.e. if the quota-holder of the "s.r.l." - by exercising its right of option on the capital increase - can effectively offset the debit by conferment with his eventual credit which is subordinated pursuant to art. 2467 of the Italian civil code. In responding to the question, the Business Division of the Court of Rome initially raises a more general problem, asking whether the pecuniary debt assumed at the time of conferment can be offset by a pecuniary credit (of the same quota-holder) towards the company.

To this preliminary question, the Business Division of the Court of Rome answer affirmatively, referring to an orientation already established in the jurisprudence of the Supreme Court (see Cass. 19 March 2009, no. 6711, Cass. 24 April 1998, no...