Ogiltigförklaring av aktieteckning - Möjligheten att ogiltigförklara en aktieteckning med åberopande av allmänna avtalsrättsliga ogiltighetsgrunder ; Annulment of a share subscription – Possibility of annulling a share subscription on the basis of general grounds of nullity under contract law

A shareholder has no personal liability for the obligations of the limited company. The creditors of the company have only the company assets as a collateral for their claims against the company. Therefor, it is important that capital is contributed to the company when it is founded and that the capital stays in the company during the activity, and this to protect the creditors. Owing to this, referring to general contract law cannot annul an application for shares. If there would be possible for a misled subscriber to annul an application for shares, it is considered in jurisprudence that such annulment would lead to detriment for the creditors. This is due to the company’s share capital, which would decrease because of the annulment, and the share capital is considered to be an important protection for the creditors. A misled subscriber is therefore not considered to have the possibility to annul an application for shares with reference to general contract law. This was established by the Supreme Court in NJA 1918 p. 398 and the justifications for this have been subsequently discussed in the doctrine. A subscriber of shares has however the opportunity to pursue an action for damages against the members of the company who made the misleading action. In this paper the motives for why a misled subscriber should have no right to reference to general contract law to annual an application for shares are questioned and if it really is considered so obvious that the interest of the creditors should go before the interest of the investors. Further, it is questioned whether the creditors are protected in the way that is asserted in jurisprudence, which is considered to justify that an application for shares cannot be annulled. The conclusion is that the justifications underlying the current law is questionable how they are considered tenable to assert that a subscriber of shares not have the possibility to annul an application for shares with reference to general contract law. ; En aktieägare har inget personligt .