Responsibility of the administrator for debts: legal presumption of subsequent debts

The existence of the debt is proven and that the company is incurred due to dissolution, it is presumed that the debt is subsequent to the cause of dissolution and, therefore, the social administrator must respond to it. Therefore, if the administrator is declared in absentia for not appearing in the process, he cannot destroy the legal presumption, which he plays against him.

MSM nº 1959.2

MADI nº 3270

MSL nº 3917

In the first instance, the lawsuit filed against a social administrator is dismissed because, although the existence of the debt and that the company was in the process of dissolution was accredited in the process, the date of the debt, however, was not accredited, in order to determine if it is subsequent to the cause of dissolution (in which case the administrator responds according to LSC art.367), or is earlier (in which case he does not respond). There is a circumstance that the defendant administrator did not appear in the process, and was therefore declared in default.

In the second instance, the Provincial Court repeals the judgment of instance, condemning the defendant administrator. For this purpose, it states that, in accordance with the legal presumption set forth in LSC art.367.2, it must be presumed that the obligation – which is not disputed to exist – is subsequent to the cause of dissolution – whose existence is also not discussed.

The condemnation of the administrator reaches not only the principal debt, but also the interest generated since the debt was claimed in a first process urged against the company, plus the costs imposed in that process on the company.