This article explains a real-life case of how a business paralysis caused by perfect parity is resolved. The name of a fictitious company, SÚBETE AL CARRO, SL, is used.

The Problem: The Paralysis of Perfect Parity

Two entrepreneurial partners, Don Numerio Negido y Lady Seguranda Augerius, they decide to form the company "GET ON THE BAND, SL" with a clear objective and a solid business plan. For the incorporation, they agree on an identical participation structure: 50% of the share capital for each one.

This parity is achieved with considerable effort: while Don Numerio provides monetary capital by capitalizing unemployment benefits, Doña Seguranda Augerius makes a Non-Cash Contribution (AND) of identical value (€2.000) consisting of an intangible asset (a web positioning service). Both contributions are duly formalized before a Notary, benefiting from the exemptions of the Law Create and Grow that facilitates constitution of SL.

To regulate their future relationship, they sign a Partners Agreement exhaustive that includes a specific clause, the 3.5, on decision-making.

The Key Question (and the problem): What happens if, months after the company is formed, Don Numerio and Doña Seguranda reach an impasse over a decision essential to the future of the business?

  • The Risk: In a 50/50 partnership, the risk of blockage or deadlock is inherent. If the Capital Companies Act If a majority is required (for example, for the appointment of a new director or a capital increase), or if the bylaws require it for ordinary decisions, disagreement between the only two partners paralyzes the corporate will. The company becomes a rudderless ship.
  • The Legal Consequence: The board's blockage, if it persists, may constitute a legal cause for dissolution of the companyA project with potential is doomed to collapse, with the resulting loss of the founders' investment and efforts.

The Problem Clarified: The conflict is not whether they should make decision A or B, but whether the Partners Agreement has provided effective mechanisms that allow unblock the governing body and/or the General Meeting without the need to resort to dissolution or long and costly legal litigation. The problem is the absence or ineffectiveness of the Unlocking Mechanisms in the face of a perfect parity structure.

The Solutions: Shielding Society 50/50

A joint-stock company should never be established without pre-agreed mechanisms to break the symmetry when the situation demands it. Solutions must be contained in both the Articles of Association (for their effectiveness) and the Bylaws (for their effectiveness). erga omnes) as, in more detail, in the Partners Agreement (for its contractual force between the partners).

Solutions can be classified into three levels:

1. Preventive and Government Solutions

  • Casting Vote (Statutory): The simplest solution is to avoid 50/50 governance. It establishes that one partner (or a neutral third party) will have a casting vote in the event of a tie in the governing body.
  • Board of Directors (Independent Third Party): Instead of Joint Directors (50/50), a Board with an odd number (e.g., 3 members) is chosen, where one of them is a Independent Administrator who acts as referee or has the deciding vote in the event of a tie.

2. Breakup Solutions (Buy or Sell)

When the conflict is irreconcilable and the problem is coexistence, clauses are activated that force the sale of the shares:

  • Clause Shotgun (Russian Roulette): One partner offers the other a price for his 50%. The recipient of the offer is obliged to buy half of the bidder at that price, or sell you their half. This forces the bidding partner to be honest with the valuation.
  • Texas Shoot-Out: Both partners submit sealed bids for the other's stake. The highest bidder buys out the other's stake, breaking the parity and ensuring the continuity of the business.

3. MASC Solutions (Adequate Means for Conflict Resolution): The Notarial Route

The solution that best suits the search for continuity and agreement, before activating a costly or traumatic forced sale, is the articulation of a MASC mandatory in the clause of deadlock.

  • Prior Mediation or Arbitration: It is mandatory to submit any blocking situation to an expert and impartial third party before going to court.
  • Notarial Conciliation (Recommended): The Shareholders' Agreement can and should establish that, in the event of a decision blockage, the parties will submit to an act of Notarial Conciliation (Law 1/2025). This solution offers unsurpassed advantages:
    1. Speed ​​and Proximity: The Notary is called upon, as he is already familiar with the business, having authorized its incorporation.
    2. Executive Effectiveness: If a conciliation agreement is reached, the notarial deed has value of executive title (such as a judgment or arbitration award). This means that the agreement reached is directly enforceable and does not require further legal proceedings, making it a much more agile solution than any mediation or conciliation that does not result in an enforceable title.

Conclusion: In the case of Don Numerio and Doña Seguranda Augerius, the best defense is prevention. A well-drafted Shareholders' Agreement that binds the Notarial Conciliation before any break (clauses Shotgun), allows society to solve the deadlock quickly, economically and with the legal security that only a public instrument can provide. The Notary thus becomes the key element not only of the constitution, but also of the stability and the governance of the 50/50 society.