Demands in action claim for compensation action to partners-administrators for damages caused to the commercial company
Partners and/or administrators de facto or by law that cause damage to both the company and other partners and/or creditors, will be jointly and severally liable for the damages caused through liability actions, through 4 types of actions:
- Social responsibility action where it is intended to compensate society for damages caused by negligent acts, contrary to the Law and the statutes. All those provisions of money, loan subscription, as well as unfair competition actions that administrators could carry out are included in these cases.
- Individual liability action , one filed by partners or creditors who feel harmed by the actions of the administrators. Within this modality those creditors who have seen an impossibility in the collection of their credits due to a de facto closing of the debtor company would enter.
- Action for derivation of liability for corporate debts against creditors (art. 376 LSC) because the company is in the process of dissolution. It is that action that is interposed to compensate those creditors whose credits have been frustrated by the closing of the company by the administrators. The legislator makes administrators who fail to comply with the obligation to promote the dissolution of the company they manage if it is in the process of dissolution (art. 367 LSC), which includes only debts generated after that the company was in the process of dissolution.
- Responsibility of administrators for guilty bankruptcy . Finally, the Bankruptcy Law allows the Judge to declare the responsibility of the administrators for all or part of the debts of the bankrupt company when they have contributed to the bankruptcy and it has been qualified as guilty (art. 172 bis LC).
From our team, experts without competence in these matters with numerous favorable judgments obtained, we offer both the defense to partners and / or administrators of this type of procedures as well as the filing of procedures to partners who have been harmed by the negligent actions of the administrators.
The difference between both figures is, it depends on the heritage that has suffered the damage and, therefore, it is intended to be left undamaged. If it is the separate patrimony – the legal person – the social action will proceed, if it is the patrimony of the partners, the individual action. and it has caused damages to the company that will have to compensate if the breach has been negligent or unfair (art. 1107-1108 CC).
Individual action is not an “action” but is simply a referral. The fact that the administrator is contractually liable to the company and has to repair the damages caused by breaching his administration contract does not exclude that, in accordance with general rules (1902 CC) or individuals (art. 20 LCD, for example) he may be passively legitimized to support an action for damages, cessation, retraction, unjust enrichment, etc. exercised by a third party or a shareholder.
The patrimony compensations to partners
Thus drawn the distinction, it would not be necessary to put the accent so much on the damaged patrimony as on the end of protection of the norm that imposes the duty to the administrator and, therefore, on the holder of the interest protected by the imposition of the duty infringed by the administrator.
Thus, the social action will proceed when the administrator has infringed his duties of diligence or loyalty, because the legislator imposes such duties on him to protect the integrity of the corporate patrimony.
If, in addition to the infringement of such duties, damage occurs to that patrimony, the company will be entitled to exercise social action. Outside of this assumption, to determine whether a partner or a creditor can sue the administrators, it will be necessary to establish not only that the plaintiffs have suffered damage causally connected to the administrator’s conduct (because the partners and creditors will normally suffer the damage, indirectly, every time the administrators cause damage to the corporate assets insofar as, either they see the value of their social participation reduced – the partners – or they see the solvency of their debtor – the creditors – reduced), but if the damage is It has produced the partner or creditor because the administrator has infringed any duty that the legal system places in his charge to protect the legal sphere of the plaintiff partner or creditor.
We understand the difficulty of differences in each one of the figures, in which case our team of professionals advises you without any kind of commitment both to act on any of these claims if you are harmed and to defend the claims that you may have received. Our firm is a specialist in this matter and we are creators of numerous jurisprudence in this regard. We have no competition in this field, so we recommend our services at the best price.