Interpreting a Legal Transplant within Its New Legal Context: Comparing the Formality Requirements for Share Purchase Agreements between Slovenia and Germany

Abstract

This article examines the formality requirements for share purchase agreements in Slovenian limited liability companies through the lens of legal transplants and comparative law interpretation. Focusing on the applicable provisions of the Slovenian legislation, which in the relevant aspects originates from the German legislation, the article challenges the prevailing position in Slovenian case-law that the requirement of a notarial deed applies not only to the legal act by which a business share is transferred ( modus acquirendi legal act), but also to the legal act establishing the underlying obligation for the transfer ( titulus iuris legal act). By combining doctrinal analysis, comparative law methodology, and an examination of Slovenian, German, and Austrian legislation, the article demonstrates that the Slovenian legislator omitted the German provision expressly extending the notarial form requirement to titulus iuris legal acts. The article shows that this omission has material interpretative consequences that cannot be remedied by an uncritical reliance on German jurisprudence and legal doctrine. By using different methods of interpretation, the article shows that, under Slovenian law, share purchase agreements as titulus iuris legal acts are not subject to a notarial form requirement. From perspective of interpretation of legal transplants in their new legal context, the article illustrates how even minor deviations in the transplantation of legal norms or legal institutions may significantly alter their operation within the recipient legal system, underscoring the need to interpret legal transplants within their new legal context.