Leccion 2. El Empresario (I) PDF

## PRIMERA PARTE. EL EMPRESARIO ### LECCIÓN 2. EL EMPRESARIO (I) #### 56 - The legal risk of the company is not supported by the real and effective entrepreneur. - Instead, it is forced on the creditors. - In the most severe cases (when the hidden entrepreneur is a person incompatible with the e...

## PRIMERA PARTE. EL EMPRESARIO ### LECCIÓN 2. EL EMPRESARIO (I) #### 56 - The legal risk of the company is not supported by the real and effective entrepreneur. - Instead, it is forced on the creditors. - In the most severe cases (when the hidden entrepreneur is a person incompatible with the exercise of the mercantile profession), the legal prohibition of the fraud of law will allow the authentic entrepreneur to be held responsible for these debts. - In other instances, it will be necessary to appeal to the prohibition of the abuse of law or to the legal rule on indirect representation in mercantile law. - Proving that the apparent entrepreneur has acted on behalf of the hidden entrepreneur allows the third party to sue either one of them. #### III. LA RESPONSABILIDAD CIVIL DEL EMPRESARIO #### 8. EL PRINCIPIO DE LA RESPONSABILIDAD PATRIMONIAL UNIVERSAL - The entrepreneur, whether a natural person or a legal person, is subject to the principle of universal patrimonial responsibility. - Like any other individual, the entrepreneur is responsible for fulfilling legal, contractual, quasi-contractual or extra-contractual obligations with all his present and future assets. - In the case of individual entrepreneurs, he responds with his entire assets, be it civil or mercantile, without having the possibility of setting up a separate patrimony. This limits the assets and rights to the civil responsibility derived from the exercise of the business activity. - The same applies to mercantile companies: they respond with their entire corporate patrimony to the fulfillment of their corporate obligations. - When the mercantile company adopts the form of a collective company or a limited partnership, the company's responsibility is added to the responsibility of all or some of the partners. - Collective companies: all the partners respond personally, unlimitedly, subsidiarily and jointly and severally for the company's debts. - Limited partnership companies: only the collective partners respond for the company's debts, not the limited partners. - If the company is a public limited company or a limited liability company: partners do not respond. - The benefit of the limitation of liability - i.e., the absolute autonomy of the partners' assets with respect to the corporate assets regarding liability - is the configuration principle of these types of companies. - However, although partners do not respond for the company's debts, there is one instance in which the managers, whether they are partners or not, do respond. - This occurs with respect to debts subsequent to the occurrence of a legal dissolution cause. If this cause exists, the managers violate the duties that the Law directs them to fulfill in order to bring the company into the period of liquidation. - Mutualist-based companies: cooperative company partners do not respond personally for the company's debts. - The principle of universal patrimonial responsibility means that all assets, things and rights comprising the debtor-entrepreneur's patrimony or the debtor-company's patrimony are subject to the fulfillment of the obligations. - In the event of non-fulfillment, the creditor can direct himself not only against the assets that were part of that patrimony at the moment the obligation was contracted, but also against all those that enter to form part of that patrimony subsequently. - The universal patrimonial responsibility of the entrepreneur with respect to each and every one of the creditors ends with the extinction of the obligation, either by voluntary or compulsory fulfillment or by any other act that has that extinctive and liberating effect, or when the action to demand its fulfillment prescribes. - In the case of mercantile companies, the extinction of the company's responsibility also extinguishes the responsibility of partners and managers in those cases in which this responsibility -as established by law - is enforceable. #### B) However, in Spanish law there are some indirect techniques, fully lawful, so that the individual or corporate entrepreneur can achieve an effective limitation of responsibility in the exercise of the activity he dedicates or intends to dedicate himself to. ##### a) - The first technique - admittedly, of limited scope - is specific to the married individual entrepreneur. - To this end, it is enough for the entrepreneur's spouse, with or without the latter's agreement, to formally oppose the exercise of the industrial, commercial or service activity by that entrepreneur. - When the opposition is included in a public deed registered in the Mercantile Register, and the essential details of the registration are published in the Official Bulletin of that Register, the only assets that respond to the fulfilment of the obligations contracted by the married entrepreneur will be the entrepreneur's own assets and those assets of a common nature or belonging to the joint estate that have been obtained precisely in the exercise of the business activity. - In such cases, the rest of the assets of a common nature or belonging to the joint estate will not respond, nor will the assets of the other spouse. ##### b) - The second technique, common to both individual entrepreneurs and mercantile companies - and even to non-entrepreneurs - is that of the sole proprietorship public limited company or limited liability company - Any natural person or legal person can establish a sole proprietorship public limited company or limited liability company. - Any natural person or legal person can also acquire all the shares or participations of a public limited company or limited liability company established by several partners, thereby converting it into a sole proprietorship company and reflecting this conversion in the Mercantile Register. - Both in cases of original sole proprietorship and in cases of subsequent sole proprietorship, the benefit of the limitation of responsibility is achieved through a legal person distinct from the natural person or legal person that is the owner of all the shares or of all the corporate participations. - The general rule is that any person, natural or legal, Spanish or foreign, may set up as many Spanish sole proprietorship companies as necessary or appropriate: there is no maximum number of sole proprietorship companies that a single person may set up or that they may be part of. - By exception, there is a legal prohibition on setting up a sole proprietorship company or a public limited company #### 57 - or acquiring the condition of sole shareholder for that person who already holds the condition of sole shareholder of a new company enterprise. #### 58 - Fulfillment of the sole shareholder's personal obligations is the responsibility of that person's assets, which will include all the shares or participations of the sole proprietorship companies that belong to him. - The assets of the public limited company or the limited liability company respond exclusively to the fulfillment of the company's obligations, unless the situation of subsequent sole proprietorship has not been noted in the Mercantile Register within six months following the day on which the company acquires the character of sole proprietorship. - Only in that exceptional case does the law establish the personal, unlimited and joint and several responsibility of the sole shareholder for the company debts contracted during the period of sole proprietorship. - There is a case, however, in which a mercantile company, without needing to set up independent and autonomous companies in the formal plane, establishes "separate assets" with a specific limitation of responsibility. - We are referring to investment companies, which are those special public limited companies, of fixed or variable capital (within the limits of maximum and minimum capital set out in the statutes), whose exclusive object is "the collection of funds, assets or rights from the public to manage them and invest them - in assets, rights, securities or other instruments, financial or not, provided that the investor's return is established as a function of the collective results." - These investment companies - just like investment funds - can set up "compartments." - In that case, the portion of the company's capital corresponding to each "compartment" will exclusively respond for the costs, expenses, and obligations attributed expressly to that "compartment" and, in the proportional part that is established in the company statutes, for the costs, expenses and obligations that have not been expressly attributed to a "compartment." #### C) However, it is that the Law 14/2013, of September 27, has introduced into Spanish law the figure of the "entrepreneur" - a natural person of limited liability, whether he is an entrepreneur properly speaking or any other professional. - This benefit is subject to a double limit: firstly, by reason of the debts, and secondly, by reason of the assets. - By reason of the debts, because the entrepreneur can only use this technique for debts deriving from the exercise of business or professional activity, and not for others, and by reason of the assets, because the only separate patrimony excluded from universal patrimonial responsibility is the habitual residence (always, in addition, that its value does not exceed €300,000, with a 1.5% correction coefficient in populations of more than one million inhabitants). - It makes no difference whether, before obtaining that benefit, the entrepreneur has mortgaged that dwelling in favor of a creditor of his own or of a third party. - Nor does it make a difference whether, after obtaining it, he constitutes that real right of guarantee over the dwelling. #### 59 - For the effectiveness of the limitation of liability, it is required, firstly, that the entrepreneur is registered in the Mercantile Register and that the asset not subject to universal patrimonial responsibility is identified in the sheet opened to that individual in that Register, and, secondly, that the non-liability of the habitual residence as a result of business or professional traffic is also registered in the sheet opened to that dwelling in the Land Registry. - The voluntary or involuntary transfer of ownership of the dwelling does not extinguish, as is logical, the benefit - although the entrepreneur can achieve it again with any other immovable asset to which he assigns the same consideration as habitual residence, whether it was already in his patrimony or he has entered it later. - Naturally, the limitation of liability benefit operates towards the future - i.e., for future debts - and not into the past: for debts contracted before obtaining the benefit, patrimonial responsibility will continue to be universal. - The Law imposes a duty on the entrepreneur with a limitation of responsibility, whether he is an entrepreneur or not, to prepare, and, as appropriate, to submit to audit, the annual accounts corresponding to the business or professional activity that he develops, as well as the duty to deposit them in the Mercantile Register, sanctioning the non-fulfillment of the duty to deposit with the loss of the benefit. #### 9. LA RESPONSABILIDAD CONTRACTUAL DEL EMPRESARIO - In the exercise of business activity, both individual and corporate entrepreneurs are subject to the general system of civil liability. - This means that the entrepreneur, regardless of his type, responds for the non-fulfillment of contractual obligations attributable to him - whether it is definitive non-fulfillment, defective fulfillment or late fulfillment - in accordance with the general principles contained in civil legislation. - Of course, the entrepreneur responds to creditors not only for his own activity, but also for the activity developed by his agents. - Attributable non-fulfillment by the debtor-entrepreneur obliges him to compensate for the damages caused, compensation that will be greater or lesser depending on whether malice or simple negligence is involved. - On the contrary, non-fulfillment that is independent of the debtor-entrepreneur's will - whether it is caused by force majeure or unforeseen circumstances - does not constitute non-fulfillment in a technical-legal sense, and therefore does not give rise to an obligation to compensate, unless the law establishes it expressly. #### 60 - However, there are some special aspects regarding late fulfillment: firstly, in mercantile contracts that have a fixed day for fulfillment, the effects of default begin "the day following its expiry", without the need for a demand by the creditor. - Against the civil requirement of a demand, the rule of expiry applies: dies interpellat pro homine. - Secondly, in commercial operations that take place between entrepreneurs, not only is the maximum payment term that can be agreed sixty days from the date of receipt of the goods or performance of the services, but also, in the event of non-payment within the period stipulated by the parties or, in the absence of an agreement, within the maximum period permitted by law, the default interest that the debtor must pay will be the agreed interest and, in the absence of an agreement, a reinforced interest will be paid (the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation made before the first day of the natural semester in which the debt is incurred, plus eight percentage points) , and not the legal interest. - And thirdly, if the default in payment is due to the debtor's fault, the creditor is entitled to claim compensation for the duly documented recovery costs that he has suffered as a result of that default. #### 10. LA RESPONSABILIDAD EXTRACONTRACTUAL DEL EMPRESARIO - Outside the contractual field, the entrepreneur, like any other person, is subject to the general regime of extra-contractual responsibility: the entrepreneur is obliged to repair the damage caused by an act or omission in which fault or negligence intervene. - The principle of responsibility through fault, therefore, applies. - However, in Spanish case law, there is an evident tendency towards a system in which, without making a total abstraction of the psychological or moral factor and the value judgment about the agent's conduct, quasi-objective solutions are obtained. - The increase of business activities that involve a danger to persons and goods, as a result of technical development, has encouraged judges and magistrates to consolidate a new principle, according to which those who obtain the benefit must pay compensation for the damage suffered by the third party, as a counterpart to the profit obtained with the dangerous activity (cuius est comodum eius est periculum; ubi emolumentum, ibi onus). - To arrive at these quasi-objective solutions, the jurisprudence sometimes proceeds to reverse the burden of proof of fault, and, in other cases, to the application of the so-called "risk theory," by virtue of which those who generate the risk bear the obligation to compensate. - It is constant case law that, to disprove the attribution of the judgment of extra-contractual civil responsibility, it is not enough to prove compliance with the regulatory norms of the corresponding sector, since the mere fact of the occurrence of the damage shows the insufficiency of the security and guarantee measures contained in the regulations. #### 61 - In addition to this case law evolution, it is necessary to point out that, in some cases, Law itself establishes objective responsibility of the entrepreneur, such as in the case of the operator of nuclear power plants and in the case of the manufacturer (see item 5). #### 11. LA RESPONSABILIDAD EXTRACONTRACTUAL DEL EMPRESARIO POR HECHOS DE THE DEPENDENTS - But the entrepreneur not only responds to third parties for damages derived from his own acts, but also for "damages caused by his dependents in the service of the branches in which he had them employed, or on occasion of their functions." - Of course, the entrepreneur's responsibility for the acts of others requires the fault or negligence of the dependent. - It makes no difference whether the entrepreneur is the owner of the establishment or whether he is operating in that establishment the business activity by virtue of any other legal title (e.g.: the lease). - The foundation of this responsibility for the acts of others is the fault in choosing or in supervising the entrepreneur (see, among others, Supreme Court rulings of May 22 and October 10, 2007, June 20, 2008 and February 6, 2009); but that fault is presumed, thus reversing the burden of proof. - However, Spanish case law is particularly rigorous when it comes to considering the diligence of the entrepreneur proven, so that, in fact, this responsibility of the entrepreneur is very similar in practice to cases of liability for risk. - The Civil Code uses the term "dependent" in a common sense, and not with the concrete scope of the Mercantile Code, as an intermediate category between "factors" and "apprentices." - Whenever a person is in a situation of hierarchical dependence with respect to the entrepreneur, it is possible to speak of a dependent, although there is no, strictly speaking, a labor link between both parties. - The damage must have been caused by the dependent, either in the service of the branch in which he was entrusted or on the occasion of his functions, although it is presumed in favor of the injured party that one of these two circumstances occurs. - The responsibility of the entrepreneur is not subsidiary but direct. - The injured party may direct the claim directly against the entrepreneur - he may sue the entrepreneur and the dependent jointly and severally - or he may, finally, direct the action exclusively against the material cause of the damage. - In any case, the entrepreneur who compensates for the damage caused by his dependents may recover from them what he has paid.