Liability for debts of the corporate director

The SC declares that the corporate director is jointly and severally liable for compliance with the obligation to pay the periodic income and similar amounts after the time at which the company incurred in the cause of dissolution.

The disputed issue focuses on whether, in order to determine whether there are losses that are grounds for dissolution of the company, these losses must reduce the net worth reflected in the annual accounts of the company to an amount less than half of the share capital, or whether what must be reduced by losses to an amount less than the share capital is the sum of the net worth and the liabilities.

The SC considers that “equity” and “liabilities” are clearly differentiated bodies of assets and liabilities. The former, made up of capital, reserves and profit for the year, are the company’s own sources of financing, external in some cases (capital) and internal in others (reserves, profit for the year). It reflects the value of the assets and rights contributed by the partners to the company. The “liabilities” are made up of payment obligations to third parties and, as such, their elements constitute sources of external financing for the company. Both assets and liabilities together constitute the financial structure of the company, the combined monetary value of which corresponds to the value of the assets that make up the assets (economic structure of the company) – according to the equation assets = equity liabilities -.

Therefore, the net worth constitutes the residual part of the company’s assets, once all its liabilities have been deducted. In terms of accounting legality, the net worth constitutes the value or “wealth” of the owners of the company, that is to say, the part that would correspond to the partners once the assets have been realized and the liabilities of the company have been settled. What generates the legal cause for dissolution of the company provided for in Article 363.1.e) of the LSC is that the “net worth”, due to accumulated losses, is reduced to less than half of one of its components (the capital).

In the present case this situation occurred at the end of the 2010 financial year, whose annual accounts presented a net equity figure of 455.62 euros, less than half of the share capital (art. 4. 1 LSC); a situation that worsened during the successive years 2011, 2012, 213 and 2014 in which the balance sheet presents negative and increasing net worth figures (in 2,011 – € 42,063.88) in 2,012 – € 52,775.83; in 2,013 – € 65,215.46; and in 2014 – € 72,461.99). By not having so understood the Provincial Court violated art. 363.1,e) LSC.

Therefore, the SC upheld the appeal, revoked the appellate judgment and took up the appeal, the object of the lawsuit being to determine whether the corporate director is liable for the rents accrued from a lease contract entered into before the company incurred in a cause for dissolution, but which remained in force until a later time.

The contract was entered into in May 2008, the cause of dissolution occurred in December 2010 and the duration of the contract lasted until the eviction was judicially requested and all the rent arrears were claimed. The Chamber, following consolidated case law, considers that what is relevant to decide whether the obligation is prior or subsequent is the date on which it arose, not its full accrual or enforceability or the date of the judgment declaring it.

In this case, where the obligation is the income arising from a contract of successive tract, such as a lease of business premises, it cannot be considered that the obligation arises at the time of conclusion of the original contract, but each time a performance is made within the framework of the relationship in question. This means, in the case of the lease, that the rents accrued after the occurrence of the cause for dissolution are to be considered subsequent obligations, which are therefore susceptible to generate the joint and several liability of the administrators, in accordance with art. 367 LSC.

Applying the foregoing to the present case, the corporate director is jointly and severally liable for compliance with the obligation to pay the periodic rents and similar amounts subsequent to the time at which the company incurred in the cause of dissolution.