Personal responsibility of the member of the company in a collective name for previous debts, prior to its entry even if not resulting from the accounting entries.

Personal responsibility of the member of the company in a collective name for previous debts, prior to its entry even if not resulting from the accounting entries.

You have been proposed to become part of a Bank, that is a company in the collective name. One of the previous members has decided to leave his place and you should replace it. You have carefully evaluated the offer: even if the activity carried out by the company corresponds to your professional skills, your doubts are focused on the possible liability for assets that could derive for you. You already know that the Bank is a society of people and, therefore, the social debts are transmitted to the members. This means that if the coffers of the company do not have enough money to satisfy the creditors, they can be reimbursed on the partners, submitting their personal assets (eg home, checking account, pensions) foreclosure. You then ask what happens to the debts contracted by the company before your entry and of which you may not be aware: if this should only be answered by previous members or even you. So consult your lawyer and ask him the following question: if I become a member of a Bank answer of the previous debts? Your lawyer, if you read the sentence that the Cassation published a few hours ago [1] will respond to you in the following way.

Bank equity responsibility for both the past and the future

The shareholder of a Bank is responsible with its assets for the obligations contracted by the company if it does not respect its commitments. The debts of the company are also debts of the partners who risk therefore forfeiting their personal assets.

A person who takes over an Bank , noting the shares of a previous member, he also repays the debts before his entry, although not indicated in the accounts. This is the opinion provided by the Supreme Court.

The Court reiterates the principle that in the matter of partnerships , the person who enters to form part of a company in the collective name already established previously, replies with the other shareholders for the social obligations prior to the purchase of the status of member . Moreover, this responsibility is not conditioned by the fact that these obligations result from the company’s accounting records.  

In short, the new member of the Bank is not different from all the other shareholders and, therefore, may be subject to attachment not only for the debts incurred by the company in the period after its entry but also for the previous ones. It does not take into account the fact that he has not been able to get to know it from the accounting records and financial statements if not indicated: already upstream he must know that this risk exists.

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