The long road to debt recovery for liability of directors

Supreme Court

 

 

 

 

 

 

 

The claim of debt liability of directors, can flatter over time causing problems on the standard to be applied.

 

This is the case of the recent Supreme Court Judgment 10 July 2014.

The company "Aggregates and Ready Mix S.A" (hereinafter Aridos) requests a process payment in April of the year 2002 against society "Promotions and Construcciones SL Delimar. (Delimar). The generator of the debt contract was the year 2001.

Following the judgment upholding debt, sues in January 2007 for debt claim against the administrator of the company, considering that the company was affected by any legal grounds for dissolution by cessation of activity and have reduced the book equity for the losses to less than half of the capital. The manager incurs personal liability for business debts by failing to call for a general meeting to adopt the relevant agreements.

Administrator, noting that opposes between 1997 and 2003, society was governed by a board of directors and was at the time when the debt was generated. The administrator was appointed 8 May 2003 and 20 days later, He filed for bankruptcy, approved by order of October 2003 declaring the definitive insolvency.

The Commercial Court, dismissed the claim: The problem arises on the application of Article 105.5 the LSRL: What is the version to be applied? Does the law of the time should be applied where it is claimed, birth or debt? For the Commercial Court, should be applied at the time in which it is claimed and under that criterion, the claims of "Aggregates" are rejected.

The company resorted to the Provincial Court, Returning to reject the request, arguing the principle of non-retroactivity of the rules (art. 2.3 C.C) and relying on the judgment of the Supreme Court of 9 January 2006, he understood that after the amendment of section. 105.5 LSRL operated by Law 19/2005, , should be applied retroactively the absolute standard, so that the administrator would be responsible for previous failures at the start of their role.

The previous version provided for joint and several liability of directors for all the debts, while the version of 2005 respond by stating that "after the occurrence of the legal grounds for dissolution" social debts.

"Aggregates" recourse to the Supreme Court, which upheld the appeal and rejected the arguments of the court and Audience:

Not applicable interpretation of Article 2.3 the C.C. or D.T.3ª of C.C., not the responsibility of 105.5 LSRL should be considered as a "penalty". To the Supreme Court the principle "Tempus Regit Actum" must apply and Administrator incurred personal liability.

Also, lack of diligence Administrator alleged, the Supreme Court considered proven. According to this, given all requirements for accountability:

a) Existence of any of the causes dissolution provided for in Article. 104. such as losses that reduce the equity accounting to less than half of the capital.

b) Omission by the administrator of the convening of the General Meeting.

c) Over two months concur since the cause of dissolution without convening partners or Board constituted in the agreement is not adopted and are not requested within two months before the dissolution court.

d) Liability Administrator for their negligent conduct.

Ultimately, for Supreme Court should apply the existing rule at the time of the events. But the creditor has been more of 12 years since I started the claim. The only consolation for the creditor is that since it is a personal debt, Administrator responsibility exist as living, if you hold the action to enforce the judgment.

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