Klauzula liquidation preference w świetle swobody umów oraz wybranych instytucji prawa handlowego
Liquidation Preference Clause in The Light of Freedom of Contracts and Selected Institutions of Commercial Law

Summary/Abstract: The purpose of the article is to present the notion of liquidation preference clause, to describe its types, as well as to discuss its application in the light of the principle of freedom of con-tracts and certain institutions of Polish commercial law. The article uses the following research methods: formal-dogmatic analysis of legal norms, analysis of case law and legal doctrine,comparative method. The liquidation preference clause entitles certain shareholders of the company to be satis-fied in a certain amount before the other shareholders in case of a liquidation event. A liquida-tion event may be understood both as liquidation of the company and events unrelated to the liquidation, such as sale or merger of companies. The limitations of the liquidation preference clause are set by the principle of freedom of contract. The author of this article advocates the admissibility of such a construction of the liquidation preference clause, that in case of its application excludes some partners from participation in income obtained in connection with the liquidation event. Pursuant to the provisions of the Polish Commercial Companies Code, there is a possibi-lity to include the liquidation preference clause in the capital company agreement, by using the institution of preference of shares or granting personal rights to certain shareholders. In theopinion of the author the more appropriate institution considering the purpose of the liquida-tion preference clause is granting of personal rights to certain shareholders, which is an entity right connected with the person of the shareholder, and not a right connected with shares.

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