Definition versus private autonomy – some remarks on the mandatory nature of legal definitions using the example of employee shares

Abstract

The article examines the relationship between mandatory and default rules in company law, with particular emphasis on the putative mandatory nature of definition provisions, using employee shares as the example. It takes as its point of departure case ÍH 2018.116, in which the court classified the group-wide extension of the class of persons eligible for employee shares as a deviation infringing the Civil Code’s definition provisions; the author, by contrast, argues that definitions in company law are not automatically mandatory. The article points out that norms of definition serve primarily an interpretative function. On the basis of systematic, teleological and comparative arguments supporting the partial derogability of the rules on employee shares, the inclusion of employees of group companies, subject to capital-maintenance and minority-protection safeguards, does not, de lege lata, manifestly infringe the rights of creditors, employees or minority shareholders. It concludes that the earlier judicial practice warrants reconsideration.