The company will not pay: claim against its director
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You can sue the director before the Commercial Section of the Tribunal de Instancia (the first-instance court). Article 367 LSC makes him jointly and severally liable for debts arising after the ground for winding up if he failed to call the meeting within two months. The action ends four years after he left the management, not after the debt fell due.
A Spanish limited company owes you 40,000 euros from six invoices issued last year. You obtained judgment, enforcement came back empty, and the Registro Mercantil (Companies Register) shows the company has not deposited accounts for three financial years. The last accounts on file already showed net equity of 9,000 euros against capital of 60,000. Nobody called a meeting to wind the company up, nobody applied for insolvency, and the director is still on the register, now running another company with the same business from the same premises.
The case, in five lines
- What is brought
- Action for joint and several liability for company debts under article 367 LSC, brought against the director so that he pays the company's debt, and capable of being joined to the claim against the company itself.
- Before which court
- The Commercial Section of the Tribunal de Instancia (the first-instance court), with a later appeal before the Audiencia Provincial (the provincial appeal court).
- Deadline
- Four years, counted under article 949 of the Commercial Code from the moment the director ceased, for whatever reason, to exercise the management. While he remains in office, time has not started to run.
- Who can bring it
- Any creditor of the company holding a corporate obligation that arose after the ground for winding up occurred, or after acceptance of office if the director was appointed at that meeting or later.
- Financial risk
- If the claim is dismissed you may be ordered to pay the other side's costs, and the case requires a payment on account. The director will defend himself by proving the debt predates the ground, or that he notified the negotiations or applied for insolvency within the two months.
What he is blamed for is not calling the meeting in two months
Article 367 LSC does not punish bad management or a lack of cash. It punishes one specific omission: failing to call the general meeting within two months of a statutory or articles-based ground for winding up arising, or of acceptance of office where the appointment came later. Liability also falls on a director who, after the meeting is held or fails to be held, does not seek judicial dissolution within the following two months.
Article 365 LSC completes the picture: once the ground arises, the directors must call the meeting within two months so that it resolves to wind the company up, and any shareholder may ask them to call it if in that shareholder's view the ground exists. The meeting may resolve on dissolution or, if it is on the agenda, on whatever is needed to remove the ground, for instance increasing or reducing the capital.
The consequence set by article 367.1 is harsh, and that is why it is so useful to a creditor: the director is jointly and severally liable for the company's obligations arising after the ground for winding up occurred. He answers for the whole debt, alongside the company, with his own assets, and you may proceed against him without first exhausting any other route against the company.
The commonest ground is the loss test in article 363.e)
Article 363.1 LSC lists the grounds for winding up. The one that appears in almost every case of this kind is letter e): losses that reduce net equity below half of the share capital, unless the capital is increased or reduced far enough, and provided an insolvency application is not the proper course. Net equity of 9,000 euros against capital of 60,000 meets it comfortably.
It is not the only one. Letter a) treats as a ground the ceasing of the activity making up the corporate purpose, and specifies that it is deemed to have occurred after a period of inactivity longer than one year. Letter c) covers the manifest impossibility of achieving the corporate aim, and letter d) the paralysis of the company's bodies preventing them from working. Letter h) also admits grounds set by the articles.
Choosing the right ground and its date is the core of the case, because which debts are later, and therefore recoverable, depends on that date. In a company that stopped depositing accounts, inactivity of more than a year and the last accounts on file are usually enough to place the ground in a particular financial year, and that is the point to be sustained at trial.
The law presumes your debt arose after the ground
Here lies the decisive procedural advantage. Article 367.2 LSC provides that, unless the contrary is proved, corporate obligations whose performance legitimate creditors claim in court are presumed to date from after the ground for winding up arose, or after the director accepted the appointment. The burden of showing otherwise rests on him.
That presumption changes how the evidential work is shared out. You prove the debt, the person's status as director and the existence of the ground for winding up; it is the director who must produce the accounts, contracts and books placing the obligation before that ground. In companies that have not deposited accounts for years, that evidence is very hard for him to build.
It is unwise to rest everything on the presumption. Dating each invoice, each delivery note and each supply contract strengthens the case and stops an argument about when the obligation was born from wiping out part of the claim. The presumption is a support, not a substitute for the documentary evidence you already hold in your files.
Insolvency and notified negotiations release the director
Article 367.3 LSC contains the defence the director will raise if he can. Even though the ground for winding up had arisen, he is not liable for later debts if, within two months of that ground arising or of accepting the appointment, he notified the existence of negotiations with creditors aimed at a restructuring plan, or applied for the company to be declared insolvent.
The release is not open-ended. The same paragraph makes clear that, if the restructuring plan is not reached, the two-month period resumes once the notice of the start of negotiations ceases to have effect. And article 365.3 LSC requires the meeting to be called within two months of those effects ceasing to be in force.
That is why the first thing we check is whether such a notice or application existed, when it was made and what happened next. A director who notified negotiations, never closed the plan and went on contracting for another year without calling anything falls back within article 367 for every debt arising once the two-month count resumed.
The four years run from his departure, not from the invoice
Article 949 of the Commercial Code provides that the action against managing partners and directors of companies ends after four years, counted from the moment they cease, for whatever reason, to exercise the management. It does not run from the date the invoice fell due, nor from the day enforcement against the company came back empty.
The practical consequence works both ways. If the director is still in office, you keep the action even though the debt is old. If he resigned or was removed long ago, the clock has been running for years and little room may be left, so the first step is to obtain the Companies Register extract and check the real date he left and when it was registered.
A director who leaves without registering his departure, or who empties the company and opens another one, tends to rely on dates recorded nowhere. Against that we work with the Register extract, with the accounts on file and with later acts of management showing who was in fact running the company at each moment.
How we run the case, step by step
- 1
We date the ground for winding up and his departure
We obtain the extract and the accounts deposited at the Companies Register to place the article 363 LSC ground in a specific financial year and to check the date the director left, which is what starts the four years under article 949 of the Commercial Code.
- 2
We separate the debts arising after the ground
We sort invoices, delivery notes and contracts by the date each obligation was born, because article 367 LSC reaches only those corporate obligations arising after the ground occurred or after the defendant director accepted office.
- 3
We check for insolvency or notified negotiations
We verify whether within the two months insolvency was applied for or negotiations towards a restructuring plan were notified, and whether the count resumed when that notice lost effect, because that is where the article 367.3 LSC defence lies.
- 4
We demand in writing and negotiate with the director
We send a dated demand setting out the ground for winding up, the later debts and the joint and several liability. With personal assets in plain sight, many directors prefer a payment agreement to litigation they must answer for out of their own pocket.
- 5
We sue the director and, where useful, the company
We bring the claim before the Commercial Section of the Tribunal de Instancia, relying on the presumption in article 367.2 LSC, and we join the claim against the company where no judgment against it exists yet.
- 6
We secure recovery against the director's own assets
We locate assets in his name, apply for interim measures where there is a risk of them being stripped away and, once judgment is obtained, enforce against his personal estate, not only against that of the debtor company.
The evidence that decides the case
- The last annual accounts deposited at the Companies Register, showing net equity against the share capital.
- The Companies Register extract with the director's appointment, his acceptance and, where applicable, the date he left office.
- The invoices, delivery notes and contracts with certain dates placing each obligation after the ground for winding up.
- The negative attachment record or asset search showing the company has nothing left with which to pay.
- The absence of deposited accounts over several years and the lack of activity, both pointing to the ground in article 363 LSC, letter a).
- The incorporation by the director himself of another company with the same business, the same premises and the same customers.
What closes the door
- Exhausting enforcement against the company first and letting four years pass since the director left. The period in article 949 of the Commercial Code runs regardless of what happens with the company.
- Using this route for debts arising before the ground for winding up. Article 367 LSC reaches later obligations only, and mixing the two weakens the whole claim.
- Failing to check whether the director applied for insolvency or notified negotiations within the two months. That is the article 367.3 LSC defence, better known before suing than in the defence pleading.
- Accepting without more the departure date the director gives. If it is neither registered nor evidenced, later acts of management show he was still exercising the office.
- Signing a deferral with the company without expressly reserving the action against the director, and thereby reopening the argument about when the obligation was born.
The law that applies
- Art. 363 LSC. Lists the compulsory grounds for winding up: ceasing the activity, deemed to occur after more than a year of inactivity, completion of the business, manifest impossibility of achieving the corporate aim, paralysis of the company's bodies, losses reducing net equity below half the capital, capital reduced below the legal minimum, and grounds set in the articles. BOE-A-2010-10544
- Art. 365 LSC. Requires directors to call the general meeting within two months when a ground for winding up exists, lets any shareholder ask them to call it, and excuses the director who applied for insolvency or notified negotiations towards a restructuring plan, with two months running from when that notice ceases to have effect. BOE-A-2010-10544
- Art. 367 LSC. Makes the director jointly and severally liable for corporate obligations arising after the ground for winding up where he neither called the meeting within two months nor sought judicial dissolution, presumes that debts claimed in court arose after that ground, and releases him if he applied for insolvency or notified negotiations within those two months. BOE-A-2010-10544
- Art. 949 Código de Comercio. Sets at four years the period for the action against managing partners and directors of companies, counted from the moment they ceased, for whatever reason, to exercise the management. BOE-A-1885-6627
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Must I enforce against the company first?
No. Article 367 LSC creates joint and several liability of the director for corporate obligations arising after the ground for winding up, so you may proceed against him without first exhausting the company's assets. A negative enforcement record is useful evidence that nothing is left, but waiting for it can consume the four years under article 949 of the Commercial Code.
The director resigned last year. Do I still have a claim?
Probably yes. Article 949 of the Commercial Code gives four years from the moment he ceased, for whatever reason, to exercise the management, so a resignation last year leaves room. He answers for the corporate obligations arising after the ground for winding up during his time in office, which is why the date he left and the date of each debt must be fixed precisely.
How do I prove the company was in a ground for winding up?
With the accounts deposited at the Companies Register, which set net equity against share capital and allow letter e) of article 363 LSC to be applied. Where the company stopped depositing them, one turns to letter a), which deems the activity to have ceased after a period of inactivity longer than one year, and to the absence of any trace of operations.
What if he says the debt predates the ground for winding up?
He will have to prove it. Article 367.2 LSC presumes, unless the contrary is shown, that corporate obligations whose performance legitimate creditors claim in court date from after the ground for winding up arose or after the appointment was accepted. Even so, dated invoices and contracts should be produced, because they strengthen the position and prevent partial arguments over individual items.
The company applied for insolvency. Is my claim over?
Not necessarily. Article 367.3 LSC releases the director if he applied for insolvency or notified negotiations towards a restructuring plan within two months of the ground for winding up or of accepting office. If insolvency came years later, or the plan was never reached and the count resumed, the debts arising in that interval remain recoverable.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.