Liability of directors when there is cause for dissolution

responsabilidad administrador

Social managers may be held jointly and severally condemned to social obligations after the occurrence of the legal grounds for dissolution, but not those born before their appointment

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Although initially capital companies are based on the isolation of the assets of the managers, Article 367 of the Capital Companies Act determines a joint and several liability for those, if they fail their duty to promote dissolution.

The moment that a company incurs because of dissolution, Administrators have two months to convene the meeting or promote judicial dissolution. Failure to do this, incur joint and several liability for corporate debts. It determines the date on which the administration of society to know what corporate debts are assumed to which it responds.

Article 367 solidary liability of directors

1. They jointly liable for the social obligations after the occurrence of the legal grounds for dissolution administrators who fail to comply with the obligation to convene within two months of the general meeting to adopt, if, the dissolution may, and administrators who do not apply for judicial dissolution or, you procediere, Contest society, within two months from the scheduled date for holding the meeting, when it has not been established, or from the day of the meeting, when the agreement would have been contrary to the dissolution.

2. In these cases social obligations are presumed claimed postdates the occurrence of the legal cause of dissolution of the company, unless administrators are proving that earlier date.

The Supreme Court, Civil Division, in Case 8 November 2019, nº 601/2019, It has estimated the appeal for which he was appointed administrator of New Moss 2011, S.L., the 5 May 2014, D. Evelio.

New Moss society 2011, S.L. He incurred cause dissolution after taking losses in the year 2012, which increased exercise 2013, arriving to -155.757,76 euros. Between November 2013 and March 2014 debt generated a supply of drinks 10.312,99 Bodegas euros against Javier S.L.. After claiming the amount by courts at two people administering society, Ms.. Salome y D. Evelio, by failing to request dissolution or bankruptcy, I was taken by desisted to the plaintiff in relation to the co-defendant Ms.. Salome, subsisting's claim 5.152,99 euros compared to D. Evelio responsible solidarity. The Chamber concluded that D. Evelio was not jointly and severally liable for such debt it was born prior to his appointment as director of the company.

For, arises what are the social debts for which an administrator can respond. For D. Evelio,  He took office after the company incurred in the event of dissolution, without the previous administrator, in this case, Ms.. Salome, the he had urged. Both would be jointly and severally liable for the debts that arose after the appearance of the cause and during administration. but D. Evelio should not answer for debts which arose before his appointment.  

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The company Bodegas Javier, S.L., She had a credit against New Moss 2011, S.L. of 10.312,99 euros, generated by the supply of drinks from November 2013 and March 2014. The financial statements of New Moss 2011, S.L. of exercise 2012, as a result of a loss of 72.894,26 euros, They showed negative equity capital of -69.894,26 euros, increase in exercise 2013 in -155.757,76 euros.

Ms.. Salome was manager of New Moss 2011, S.L. since the constitution of society 2011, remain so when the annual accounts were formulated 2012. He was subsequently named D. Evelio from 5 May 2014 until 9 2014.La September society was guilty of involvement in cause dissolution, but administrators They breached a legal duty to promote.

By Bodegas Javier, S.L. He has filed suit against Ms.. Salome y D. Evelio. He requested that the defendants be ordered to pay the sum of 10.312,99 euros.D. Evelio opposed the demand, requesting their dismissal.

By order dated 6 May 2016, the Commercial Court No. 1 Zaragoza, it agreed to take as withdrawn to the plaintiff in relation to the co-defendant Ms.. Salome.

Primera Instancia

The 14 September 2016, the Commercial Court No. 1 Zaragoza, He gave judgment dismissing the lawsuit, absolviendo a D. Evelio, with express imposition of costs to the plaintiff.

The Court noted that Debt, It is after the company had incurred because of dissolution, It was prior to the appointment as administrator D Society. Evelio, understanding this that was not fulfilled one of the legal requirements for the estimation of action based on that debt was further breach of the duty to promote dissolution, provided for in Article 367 LSC. The applicant did not specify in demand negligent conduct of the defendant to make him jointly and severally liable for the debt.

Provincial Court

The applicant appealed.

The 13 December 2016, 5th Section of the Audiencia Provincial de Zaragoza, He gave judgment upholding the appeal, condemning D. Evelio to pay the plaintiff the amount of 5.152,99 euros, as is the resulting amount following the withdrawal of the applicant regarding Dña. Salome.

The Provincial Court, but he dismissed the origin of the individual action of responsibility ex article 241 LSC, yes estimated action based on breach of the duty to promote dissolution by D. Evelio while he was administrator of the debtor company.

He left established that the social debt generated by the beverage supply it is after the onset of cause dissolution, understanding that, legally, there is no requirement that the administrator was so before the birth of debt.

Supreme Court

The defendant appealed. It was founded on a single plea:

  • Infringement of Article 367 LSC and jurisprudence that interprets, since the judgment under appeal upheld the claim to enact strict liability of the corporate manager when not satisfied in him all requirements imposed. It was alleged that the debt owed to Bodegas Javier, S.L. is prior to D. Evelio outside manager, contracting between November 2013 and March 2014, while the cassation was named as such 5 May 2014. He also stated that, jointly and severally liable to make debt, it must first demonstrate that, of proper dissolution and liquidation of the company have been made, it could pay all or part of the social debt.

The 8 November 2019, the Civil Chamber of the Supreme Court gave judgment upholding the appeal.

The Civil Court determined, first, on the objection alleged that "It must first demonstrate that, of proper dissolution and liquidation of the company have been made, You could have paid wholly or partially the social debt ", It has no place, as it applies in the event that an individual could prosper liability action based on the fact closing. It is not necessary to justify the causal link between debt default and breach of the duty to promote dissolution.

However, if it considers the Chamber, who was director of the company when the claim arose, the legal obligation to promote and being affected by any circumstance dissolution without having fulfilled, is jointly against the creditor, that, in this particular case, was Dña. Salome, New Moss manager 2011, S.L. since the establishment of the company until replaced by D. Evelio, the 5 May 2014.

The administrator who has ceased to fulfill the duties outlined legal to promote dissolution jointly and severally liable for the payment of social debts arising after the occurrence of the cause of dissolution, but not subsequent to his resignation.

Joint and several liability of managers is justified by the risk that is generated for subsequent creditors who hired without the financial guarantee sufficient by New Moss 2011, S.L., to fulfill its payment obligation.

The "ratio decidendi" of this Chamber, It is based on "In case of change of manager, since it assumes, It is born for a further period of two months to promote dissolution, whose failure will make jointly and severally liable for the debts after the moment he assumed the management of the company. Namely, responsibility reaches all social debts that arose while he was manager and being the cause of dissolution society, but not prior to the appointment or subsequent to his removal. "

Conclusion

Joint and several liability of directors, regulated in Article 367 LSC, It implies an incentive for managers of society comply with legally established duties to a cause of dissolution, not to respond with their own assets for a social debts. They will be responsible for the debts generated from their appointment when they meet legal duties, but not those born before it nor after its termination.

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