A change in case law on the statute of limitations for actions derived from art. 367 LSC.

The Supreme Court has established a clear case law criterion regarding the statute of limitations for actions against company directors based on breach of their duty to dissolve the company in certain pathological cases (art. 367 LSC). Ruling 1512/2023, dated 31 October (Pte. Vela Torres), concise and convincing, clears up any doubts on the matter, in the hope that this criterion will be confirmed by subsequent rulings.

Firstly, it rules out that the applicable limitation period is that established in article 241 bis LSC, which sets it at four years from the date on which the action could have been brought (principle of actio nata enshrined in article 1. 969 of the Civil Code), since this provision refers to the actions for liability of directors, compensatory actions based on the damage caused to the assets of others; and which, due to their nature and their location in the Capital Companies Act, are alien to the so-called “action for liability for debts”, which does not require an unlawful act or causal nexus or, strictly speaking, non-payment of the debt by the company (since the liability of the director is joint & several, not subsidiary).

Secondly, the Supreme Court also ruled out that the applicable limitation period is that established by article 949 CCO – as the Court itself had previously pointed out – which sets it at four years from the date on which the director ceased to hold office, given that this provision, due to the fact that it is based, should only be applied to partnerships and limited partnerships, but not to limited companies; and given that the start of the calculation of the period can chronologically disconnect the basis of the action with its exercise. 

And thirdly, the Supreme Court reasons that due to the characterisation of the director’s liability for the company’s debts as a kind of legal guarantee of the company’s debts by its directors, with the creditors being the beneficiaries of the bond; and the bond being a kind of obligation ancillary to the main one, so that once the main one is extinguished, the accessory ones are also extinguished, it declares that the limitation period for the directors’ liability coincides with that of the limitation of the guaranteed action (the company’s debt). The Judgment states that:

 “On this basis, the limitation period for the action under art. 367 LSC is that of the joint and several guarantors, i.e. the same limitation period as the guaranteed obligation (the corporate debt), depending on its nature (contractual obligations, arising from non-contractual civil liability, etc.). On the understanding that the relationship between the company and its responsible director is one of solidarity, because it arises from the acceptance of the position of director and from the provision itself – art. 367 LSC-, which confers it a legal nature, although it is necessary for it to be declared by a court. And consequently, the same interruptive effects of the limitation period are applicable to the director as would be applicable to the company, in accordance with arts. 1973 and 1974 CC. Likewise, the dies a quo of the limitation period of the action against the director will be the same as that of the action against the debtor company.”

And since in the present case the debt arose from the non-payment of the price of a sale and purchase, the Supreme Court applied the five-year limitation period established by article 1.964 CC, with the limitation period starting to be calculated from the maturity of the credit, assuming that at that time the director was in breach of the obligation imposed on him by article 365 LSC.

The line of jurisprudence set out in the aforementioned ruling, in practice, extends the limitation period by one year with respect to that established by article 241 bis LSC, both having identical dies a quo; and nevertheless restricts that established by article 949 CCO, which did not begin to be calculated until the director’s dismissal; and which had been the article applied until now for the time limitation of the action for debts against the directors (STS 669/2021 of 5 October, to cite one of the most recent).

The fact that the Judgment commented on was handed down by Sancho Gargallo, Sarazá Jimena, Vela Torres and Díaz Fraile, augurs a trail of successive decisions in agreement with the criterion used; nevertheless, if an abandonment of this line is appreciated, it will be commented on as well.

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