Limited Liability Company: responsibility of the social managers for the breach of their legal duties in reference with the concurrence of the legal cause of dissolution for losses

Judgment of the Civil Chamber of the Supreme Court. Appeal 4146/2016, of April 10, 2019 (TOL7.194.259), speaker Mr. Pedro José Vela Torres.

It is a joint and several liability for debts subsequent to the occurrence of the legal cause of dissolution, so that, in the case of a successive tract contract -legislation of business premises- held before the legal cause of dissolution, but unfulfilled after, the obligation is not born at the time of the conclusion of the contract, but must be considered subsequent obligations income accrued after the occurrence of the cause of dissolution.

Likewise, and within the scope of the responsibility of the administrators, the Judgment of the Provincial Court of Barcelona, Fifteenth Section, of April 25, 2019, dealing with the liability for damages derived from article 241 of the of the Capital Companies Law, can also be mentioned. In this case and in accordance with the provisions of articles 367 and 241 of the Capital Companies Law, a liability action was filed against the sole administrator of a limited company. It is requested to the Judge Court to order the defendant to pay the social debt in accordance with the provisions of article 367, for having failed to comply with the legal duty to promote the dissolution of the company, when there was cause for dissolution.
On the contrary, the defendant opposed the claim alleging, on the one hand, that he made partial payments through consignments in the court that heard the case execution. On the other hand, denies that the limited company has ceased its activity, so it does not concur the liability for debts of Article 367, which also extends only to the obligations subsequent to the alleged cause of dissolution. Similarly, liability for damages is rejected, since it underlines that fact closure is not true and that in no case would the budgets of article 241 concur.

The judgment of the court upholds the claim in its entirety, considering the defendant responsible in application of the doctrine of “piercing the corporate veil” and “by succession of the company”, considering that the new company is just a continuation of the aforementioned limited company, that de facto ceased to develop the same activity with the new society. Likewise, and for the same reasons – factual closure of the activity of the company and continuation of the activity by means of another company – the judgment declares the responsibility of the defendant and condemns him to the payment of the social debt in accordance with the provisions of article 241. The sentence does not enter to analyze the responsibility for debts of the article.