The Company Amendment Signed by a Suspended Manager
Sociedade Comercial Kilamba, Lda. presents a deed of amendment to its articles: increasing share capital from AOA 5,000,000 to AOA 20,000,000, admitting a new partner, and changing the manager. The deed is signed by Sr. Paulo, who appears in the commercial registry as manager. However, the notary's file from 2022 contains a prior deed in which Paulo was removed as manager and Sr. Costa was appointed - but that deed was never registered at the conservatória. Paulo claims the 2022 deed was 'superseded' by a later partners' meeting that re-appointed him, evidenced only by an unsigned minute. The capital increase is to be paid partly in kind with a vehicle valued at AOA 4,000,000.
1. Who has authority to sign the amendment, and what must the notary verify?
Read the worked answer
The notary must verify authority against the commercial registry, not against assertions.
- Registered manager - the registry shows Paulo as manager, and third parties may rely on registered facts (presumption of accuracy of the registry).
- But the notary knows of the 2022 deed removing Paulo. A notary cannot ignore a deed in his own archive. The 2022 deed, even if unregistered, is a valid corporate act between the parties; the registry entry is merely not updated.
- Unsigned minute - a minute without signatures or proper corporate formalities does not prove re-appointment.
Practical route: require (a) registration of the 2022 deed or a new registered appointment, and (b) a certified partners' resolution re-appointing Paulo with signatures and quorum. Until then, the notary should not accept Paulo's signature alone. Costa, as appointed manager, may sign if his appointment is regularised.
2. Is the in-kind contribution of the vehicle admissible, and what checks are needed?
Read the worked answer
In-kind contributions are admissible in a quota company if properly documented.
Checks:
- Valuation - the vehicle must be valued by an independent expert or by agreement of partners with a documented basis; AOA 4,000,000 must be justified.
- Ownership and encumbrances - verify the vehicle is owned by the contributor, free of liens, and that the registration document (livrete) supports transfer.
- Transfer formalities - the deed must record the transfer and the contributor's warranty.
- Capital correspondence - the total capital increase (AOA 15,000,000) must equal cash plus in-kind value; the deed must state the allocation per partner.
- Registration - the amendment and the in-kind transfer must be registered at the commercial registry and, for the vehicle, at the competent registry.
Without these, the capital increase is irregular and the notary should not certify it.
3. What is the notary's position if Paulo insists on signing today?
Read the worked answer
The notary should decline to draw the deed today.
- Duty of legality - the notary must ensure the signatory has power; a known conflicting deed in the archive creates a serious doubt.
- Registry vs. reality - the notary cannot hide behind the registry when he has actual knowledge of the 2022 removal.
- Documented refusal - record the reason, the documents reviewed and the advice (regularise appointment and registration).
- No retroactive cure - a deed signed by an unauthorised manager is voidable and exposes the notary to liability.
If the parties regularise (registered appointment or certified resolution), the notary may proceed.