Transfer Of The Main Corporate Asset And Substantial Modification Of The Company's Corporate Purpose

Judgment no. 4555/2025 of the Court of Appeal of Rome dated 17 July 2025 overturns the previously solid position of legal scholarship and case law, according to which the natural consequence of transferring the sole (or principal) asset of a limited liability company is a substantial modification of the corporate purpose set out in the articles of association, thus requiring the adoption of a shareholders' resolution.

Indeed, although the notion of a "substantial modification of the corporate purpose" under Article 2479, paragraph II, no. 5 of the Civil Code remains highly uncertain in terms of identifying the relevant scenarios, the transfer of a business or business branch is universally considered to fall within the scope of that provision.

Conversely, the legal consequences of transferring the company's sole asset without prior authorisation via a shareholders' resolution have long been debated: some have viewed it as a mere formal irregularity, others as a cause of ineffectiveness, and still others have gone so far as to regard the transfer of the sole asset without authorisation as radically null and void.

For many commentators, shareholders' approval represents an indispensable step, as evidenced by the fact that a shareholder may withdraw if they did not approve a resolution that leads to a substantial modification of the corporate purpose (Article 2473, paragraph I, Civil Code).

With judgment no. 4555/2025, the Court of Appeal of Rome, overturning the decision of the Rome Court of First Instance (judgment no. 12844/2023), affirmed the principle that the transfer of the company's sole asset does not inevitably result in a modification of the corporate purpose. Therefore, carrying out such a transfer without prior shareholders' authorisation does not automatically violate Article 2479, paragraph II, no. 5 of the Civil Code; instead, the specific circumstances of the case must be assessed.

More specifically, the case underlying the decisions involved the transfer, by public deed, of a company's fuel distribution business, with the effectiveness of the transfer suspended until the purchaser obtained the necessary licence transfers. Once the suspensive condition was fulfilled, the purchaser resold the fuel distribution facility to a third company.

Following this subsequent transfer, the company that had originally sold its business was declared bankrupt, and the bankruptcy trustee brought an action seeking a declaration of nullity of the original transfer.

The court of first instance (Rome Court judgment no. 12844/2023) upheld the trustee's claims, adopting the view that the transfer was null due to the lack of prior shareholders' authorisation.

The Court of Appeal, overturning the first instance ruling, rejected this conclusion, finding—based on the company's bylaws and the conditions of the sale—that no modification of the corporate purpose had occurred, since the selling company remained free to acquire another facility and continue its business thereafter.

It follows that, in order to assess the effectiveness and validity of a transfer of the company's sole asset carried out without a shareholders' resolution, a comprehensive evaluation of the company's present and future operating context is required.

The Court of Appeal's decision therefore represents a significant development in the interpretation of Article 2479, paragraph II, no. 5 of the Civil Code and is particularly noteworthy for the implications it may have in commercial and corporate practice.

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