Insolvency

When a company ends up in insolvency and the judge declares that such insolvency is wrongful (meaning that the insolvency has been caused or worsened by blameworthy conduct), certain responsible parties may be sentenced to cover the "insolvency deficit", that is, the part of debts that remains unpaid. In this case, a very specific situation is discussed since there were guilty bankruptcy (that is, insolvency has been caused or worsened by blameworthy conduct), certain responsible parties may be sentenced to cover the " insolvency deficit ", that is, the part of debts that remains unpaid. In this case, a very specific situation is being discussed as there was several directors (members of the board of directors) who held the position for years, and the insolvency was requested very late . The issue was deciding whether, when sentencing them, the amount should be distributed among them individually or if they could continue to be jointly liable (which, in simple terms, means that they can demand full payment —or part of it— from you and then you sort it out with the others).

The Supreme Court (TS) explains that this sentence not automatically set the same for everyone. It must be adjusted individually based on how much each person contributed to causing or worsening insolvency. In this matter, the relevant conduct was only one, the delay in filing for bankruptcy , a continued omission.

Therefore, the Supreme Court accepts a practical way to individualize, calculate the responsibility of each director proportionally to the time spent on the board during the period when bankruptcy was not requested. Those who were there longer may have contributed more to the worsening; those who were there less should pay less. This calculation may be approximate if it is reasonable.

And regarding the key doubt, individualization does not eliminate joint liability . The Supreme Court states that there may be different quotas or limits for each individual, but within the periods where several coincided as directors, the omission is considered of the collegiate body and a joint responsibility can be justified. limited solidarity , that is, being in solidarity in the common segment, but each one with their limit according to their time in office.

If you find yourself in a situation similar to the one described, our professionals can provide you with timely assistance and take any actions that may be relevant.