Possibility to claim directly against the administrator for debts of a company

It is a frequent situation, especially in the case of self-employed professionals and small entrepreneurs, that when a commercial company (SL, SA, etc.) leaves us with an invoice due, having gone bankrupt or ceased its activity, we have serious difficulties when it comes to collecting it.

This usually happens because the holder of the debt itself is not the administrator or the person in charge of the company with whom we have been dealing at all times, but the company with which we have contracted. The fact that we know that the person has more than enough assets, or that he or she even participates in other companies with profits, means that the action for a claim for payment could only be directed against the company as such, so that even if we manage to obtain a conviction, if the company no longer has any assets and has ceased its activity, we will find ourselves with a claim that is in principle uncollectible.

I say in principle, because it is obviously not lawful conduct to empty a company of its assets or to cease its activity de facto, leaving its creditors hanging, but legal formalities must be followed which, if not followed, will determine the liability of the company director for the company’s debts. For example, if a company is burdened with multiple debts that it cannot pay, it cannot simply leave its creditors hanging and disappear, but must file for insolvency proceedings for the orderly liquidation of its assets.

Until 2013, the only sure way to get the administrator ordered to pay the company’s debts was to file two separate lawsuits: one before the Court of First Instance, to declare the company’s obligation to pay the debt; and a subsequent one, before the Commercial Court, to declare the administrator’s liability to pay the debt, previously declared in the first lawsuit. This is without taking into account the possible appeals or incidents that may occur in each of the two procedures.

This situation doubled both the costs of the legal proceedings and the time needed to obtain a conviction against the administrator, forcing the creditor to go on a judicial pilgrimage which, in itself, discourages and discourages anyone, often causing them to give up claiming except for large debts, with the result that the debts were forgiven. de facto as a consequence of their failure to complain.

Fortunately, what many professionals are unaware of is that the Supreme Court ruled on the matter, both in 2012 and 2013, establishing the doctrine that both actions may be accumulated in a single lawsuit, with the Commercial Court having jurisdiction to hear the lawsuit. This opens the door for creditors to be encouraged to claim even small debts without seeing the procedure drag on for ever. On the other hand, it makes it difficult for this type of professional smart alecks to get away with their negligent management of the company, despite their negligent management of it.