One of the main risks of the management body of a capital company, whether individual (sole administrator), shared (joint or several administrators) or collegiate (board of directors) is the potential joint and several liability for company obligations arising after the concurrence of a legal – non-statutory – cause o company dissolution, which is imposed by article 367 of the Capital Companies Act (LSC), for cases in which after said cause, the organ (i) does not convene within the term of two months the general meeting to adopt, where appropriate, the dissolution agreement or the voluntary bankruptcy if the company was insolvent (Article 365 LSC); or (ii) does not request judicial dissolution or, if applicable, the insolvency of the company, within two months from the date scheduled for the meeting, when it has not been established, or from day of the meeting, when the agreement would have been contrary to the dissolution.

The sanction to the administrative body does not cause the violation of the duty of diligence in the management, as in the case of company action (Article 238 LSC) or individual (Article 241 LSC) of responsibility since the object of protection is not they are the interests of the partners, but that of the company creditors and of the commercial traffic itself, which harms the existence and performance of a paralyzed, decapitalized or insolvent society that contracts obligations – whether contractual or extracontractual (STS 10.03.2016) – whose compliance is seriously compromised because of that state. However, the duty of diligence of the administrators requires them to have correct knowledge of the situation of the company (Article 225 of the LSC), which implies knowing their financial status at least on a quarterly basis (Article 280 CCo).

The nature of liability for debts has been doctrinally classified by the Supreme Court as an ex lege responsibility for another’s debt, and not as a contractual or tort liability [with the consequence that, in the event of bankruptcy of the administrator, the credit will be qualified as pre-deductible or against the mass (STS 16.11.2017)] and in spite of its severity the Courts have to apply it strictly (STS 18.01.2017), and it can be imposed on the de facto administrator (STS 18.07.2017) and even on the individual representing the administrator legal person (article 236.5 LSC and SAP Álava 29.12.2016).

The seriousness of the consequences of the exercise of the action for debts makes importance to the substantive exceptions that can – in its case – make it decay before the Courts. Such exceptions are of a heterogeneous nature and fundamentally refer (i) to the moment of the birth of the company obligation, (ii) to the period of birth of the company obligations, (iii) to the removal of the cause of dissolution, (iv) to the term of limitation of the action for debts, and (v) finally to the abuse of right of the creditor.

(I) In reference to the moment of birth of the obligation, which should be directly related to the moment of concurrence of the cause of corporate dissolution, the jurisprudence of the Supreme Court has indicated that the obligation arises when it is constituted according to law, and not when it becomes due, liquid and due (STS 01.03.2017); with the important qualification that if in the constitution of the obligation it is subject to a condition precedent, it will be understood as born at the moment in which the condition that activates it is fulfilled (STS 08.10.2014), and if it is submitted to a resolutory condition, it will be understood as born at the moment in which the resolution originates the consequent obligation of restitution (STS 10.03.2016). Even so, the genetic moment of the unfulfilled obligation by society must be addressed, without the possibility of going back to a pre-existing obligation that caused the breached obligation – unless they are intrinsically related – otherwise the antecedent obligation would be excessive. constitutive moment of this (STS 01.03.2017) to the detriment of the interests of the company creditors, whose possibilities of action against the administrators are reduced the more anticipated the date of constitution of the unfulfilledcompany obligation. This is, for example, the case of procedural costs, which are not considered intrinsically linked to the obligation that has generated the litigation, and whose payment is a company obligation that is considered to have been born at the time when the Sentence that imposes them (STS 29.11.2017); although not that of the default interest accrued by an unfulfilled company obligation, which are considered born at the time of the obligation that they bring cause because they are very strongly linked to it (STS 10.03.2016).

(II) In reference to the period of birth of the company obligations for which the administrator must respond, it should be noted that they must be understood to be limited to those contracted by the company in the event of dissolution during the exercise of their position. In this way, the administrator will not be held responsible for the obligations arising after he has ceased to hold office, despite the fact that the breach of the duty to promote the dissolution and liquidation of the company due to the legal cause of dissolution has taken place. in force his appointment (STS 14.10.2013 and STS 02.12.2013), having to consider that the date of cessation in the position is that of his effective removal and not that of its registration because it has merely declaratory, non-constitutive effects (STS 19.11 .2013).

(III) In specific reference to the cause of dissolution for losses that reduce the equity to less than half of the share capital, it must be considered that the administrative body does not incur any liability if it timely remedies this reason through the appropriate increase or reduction of the company capital within the period of two months granted for the convocation of the general meeting with a dissolving purpose. Although this possibility is not expressly foreseen, the company responsibility of the administrators has been ruled out by the untimely removal of the aforementioned cause of resolution with respect to the obligations arising after the removal (STS 14.10.2013), so it should be understood that the timely rectification must exonerate the management body that corrects the cause of dissolution even more with due reason even before the expiration of the two-month deadline whose overcoming carries the joint and several liability. Although for the rest of legal causes of company dissolution the possibility of timely or untimely correction is not contemplated, no reasoning is found – coherent with the purpose of the norm – that would prevent the exonerative appreciation of its removal.

(IV) In reference to the limitation period for the action for debts, it should be noted that although the term of four years established by article 241 bis LSC refers only to the corporate action and the individual action of liability, it seems that four-year term is also applicable to the action for debts of article 367 LSC (SAP Barcelona 27.09.2017), which implies that for its calculation the dies a quo will be set on the date on which the action had begun to be exercised – general criterion of actio nata (Article 1969 CC) – a transcendental issue, since such criterion deviates from the one established by Article 949 CCo, which establishes the dies a quo on the date on which the administrator ceases. Although, in general terms, the criterion of the date of cessation is more disadvantageous for the administrator, it could be circumstantially beneficial if the company creditor could not legitimately know the existence of the violation of the duty to promote company dissolution.

(V) Finally, the liability action for corporate debts is dismissed by the Courts, in application of Article 7 CC, if its application involves abuse of right because the creditor has known the cause of dissolution of the company at the time of having constituted the obligation (STS 22.11.2006), or by participating directly in the omission of the duty of the board of directors to call a meeting of shareholders (STS 18.06.2012), or by having caused the debtor company’s undercapitalization with its conduct it falls in cause of dissolution.

Leave a Reply

Your email address will not be published. Required fields are marked *