Natura juridică a dreptului de preemțiune al asociaților [Articol]

Abstract

The associates’ right of pre-emption is a statutory entitlement: a selling member must inform the co-associates when offering a share to an unaffiliated third party, and the co-associates then have priority to purchase that share under the same terms. A comparative analysis shows that it fits neither the model of an absolute real right nor that of a standard claim: it is not listed among the exclusive real rights and lacks the in personam, contract-based characteristics of a typical creditor’s right. Instead, the study concludes that the associates’ pre-emption right is best understood as a potestative right – exercisable at the holder’s discretion (the preemptor has the right, but not the obligation, to use it) – whose exercise (through a unilateral declaration) directly affects the underlying sale contract. In doctrinal terms, scholars emphasize that it is a patrimonial and personal right with negative content (non-transferable), a primary legal priority right created by statute, which strengthens the internal cohesion of the LLC without conferring direct ownership over the share.