Liability for debts has always had a leading role in corporate litigation. Since its introduction in 1985, liability for debts has never been clearly defined, but from the outset it was seen as a powerful instrument of credit protection for the corporate creditor.
Pursuant to article 367 of the Capital Companies Act, the managers of a company are liable for social debts subsequent to the occurrence of the legal cause of dissolution, if the company involved in the case of compulsory dissolution, does not convene the General Meeting within two months for the Board to agree on the dissolution or, if convened by the Board, do not agree to dissolution and do not request it in court.
Therefore, one of the manager’s important responsibilities is to bring about the dissolution of the company within the legal time period. Otherwise, he/she will be guilty of lack of diligence, and consequently will bear joint and several liability for the debts incurred after the moment in which it request the dissolution.
On the determination of the “dies a quo” for the calculation of the term that determines the liability of the administrators, the relevant jurisprudence indicates that there is a period of two months to fulfill the duty to call a meeting to agree on the dissolution. This is computed from the moment the manager is aware of the concurrence of the cause of dissolution in terms of economic and accounting normality. It is the principle of requirement of intentionality or negligence that, in keeping with the conduct of omission of the call for dissolution of society, whiich governs this type of responsibility and leads to the need to take into account the knowledge – or duty of knowledge – by the managers of the loss situation.
It is important to note that shareholders who fail to comply with the obligation to convene the General Shareholders’ Meeting within two months to adopt, as the case may be, the dissolution agreement, shall be jointly and severally liable for the social obligations subsequent to the occurrence of the legal cause of dissolution, such as administrators who do not request judicial dissolution or, if applicable, the company’s bid, within a period of two months from the date scheduled for the holding of the Meeting, when the Meeting has not been constituted, or from the day of the Board, when the agreement would have been contrary to dissolution.
Therefore, in order to assess whether there is a personal and joint liability on the administrator’s part , the decisive question is whether the social debt whose payment is demanded from the administrators is a subsequent debt or not to which the cause of dissolution had occurred and, consequently, the administrators should be obliged to promote it and become responsible for all social debts. It should be borne in mind that the aforementioned article 367 turns guarantors into managers.
