{"id":2647,"date":"2020-02-07T16:03:27","date_gmt":"2020-02-07T16:03:27","guid":{"rendered":"https:\/\/vila.es\/en\/?p=2647"},"modified":"2020-10-08T15:59:13","modified_gmt":"2020-10-08T15:59:13","slug":"director-liability-when-there-are-grounds-for-winding-up-res-judicata-claim-preclusion","status":"publish","type":"post","link":"https:\/\/vila.es\/en\/corporate\/director-liability-when-there-are-grounds-for-winding-up-res-judicata-claim-preclusion\/","title":{"rendered":"DIRECTOR LIABILITY WHEN THERE ARE GROUNDS FOR WINDING-UP. RES JUDICATA \u2013 CLAIM PRECLUSION."},"content":{"rendered":"

Supreme Court judgment of 8th<\/sup> January 2020.<\/p>\r\n

The summary of the facts of the judgment are outlined below as follows:<\/p>\r\n

Two companies entered into a purchase option contract regarding some properties. In accordance with the contract, the purchaser paid part of the price upon signing the contract and after a short time, having met the agreed conditions, the seller called upon the buyer to exercise the right of purchase and sale, who replied saying that they were withdrawing from the operation and claiming the return of the amounts handed over as part of the price up until that moment. As this did not happen, the buyer filed a claim against the seller, and in spite of being condemned to pay, the company bank accounts of the seller were empty.<\/p>\r\n

Therefore, the buyer brought an action against the directors of the seller company pursuant to article 367 of the Spanish Capital Companies Act, in breach of their legal duty for not having wound up the company when it \u00a0was found that there were grounds for winding-up. The first instance judgment accepted the plaintiff\u2019s claim although the Provincial Court substantially reduced the amount of compensation claimed.<\/p>\r\n

Given the difference between the amount claimed and the amount adjudicated in the first lawsuit, the buyer and the plaintiff in said lawsuit filed another claim against the directors of the seller company for the amount equivalent to the debt that the seller had with the buyer, deducting the amount collected as a result of the first judgment mentioned above. On this occasion, the claim was founded in the individual action for liability provided for in article 241 of the Spanish Capital Companies Act, and secondarily, in the corporate action of article 236 of the same Act.<\/p>\r\n

With regard to the second claim against the directors of the seller company, the commercial Court verified that indeed the directors of the defendant company, having paid out dividends to its partners, terminated all of its directors, leaving no one responsible for the company, thus, breaching the obligation to formalise company accounts, therefore declaring\u00a0 the directors to be jointly and severally liable and agreeing with the plaintiff.<\/p>\r\n

However, the Court upheld the appeal of the directors, respecting the effectiveness of the res judicata<\/em> of the judgment given in the previous case whereby the directors were declared responsible for the payment of the company debt (albeit for a lesser amount than that claimed in the second claim), and it was only partially upheld. The judgment became firm, which resulted in a preclusion of claims for such cause, and there was no longer a basis for a further claim for an amount not admitted in the first judgment based this time upon an individual liability action (article 241 of the Spanish Capital Companies Act).<\/p>\r\n

The judgment was appealed in cassation before the Supreme Court which reached the following conclusion:<\/p>\r\n