The Subsidiary liability, works as an exclusion and ultimately residual when there is a non-payment by a company.
If at the maturity of this debt the company, as the main debtor, does not meet its payment obligations, then it may resort to the demand for payment to subsidiary managers associated with the company.
This will be done provided that the creditor demonstrates that the payment work that the company has as the main debtor has failed in several attempts, and that it has not really been able to solve the problem or fulfill its respective obligation.
What mainly characterizes indirect liability?
It is characterized in essence by being one in which the total debt of a company can be demanded, at the subsidiary debtors, only in the event that an attempt has been made to collect the debt, without success in the attempts.
Is when the subsidiary debtor has to answer, in the only case in which the main debtor, in other words, the company as a whole, has not been able to respond financially to the problem presented by the company.
That is why, if a company owes you a certain amount of money, you should try to collect from it on several occasions, checking that society has not responded, that is when you will have to face this evidence and be able to start. claim indirect liability available to those members of the company with the debts acquired by the company.
Subsidiary responsibility, as defined by Law 58/2003, Attorney General, It is that responsibility that falls on a person when the fact of a breach of contract by a third party in an association occurs.
Example of vicarious liability
As an example, a company is a manager of a subsidiary when the direct contractor of the workers, does not comply with the labor and social security obligations with its employees.
It is subsidiary responsibility falls on a person who defaults on the payment of a debt by a third party. In this area, because the debt cannot be demanded by the holder of the same, the payment obligations to those who have been designated in the contract or, failing that, to whom the respective law determines as guarantors of the debtor.
As an example:
To be more specific, this does not mean that the debt passes into the hands of a third party, since payment can only be demanded from the main person responsible, but if this responsibility was mentioned in the contract, it will have to be legally fulfilled, to further explain this point, it should be noted. that the responsibility of the partners within a group or association is:
- Personal
- Solidarity
- Unlimited
- Subsidiary
Post 127 C. de C. summarily determines that All partners who are part of the collective partnership are personally and severally obligated, with all the assets of his property, to the resulting operations that are carried out in the name and on behalf of the association, under his signature, so he must answer for all of them if related, since both gains and losses are shared.
Besides the Art. 237 C. de C. define what property or personal possessions of general partners that were not included in the patrimony of the association at the time of its constitution, cannot be sold for the payment of the obligations or debts contracted by the company, but after having made the total sale of the assets belonging to the company.
The responsibility of all partners It includes what is established in the contracts, that of illegal acts and legal responsibility.
Economic justification
The partners that belong to SL and SA acquire a limited liability at the time of submitting to the capital regime.
On the other hand, Collective partnerships are not subject to any such regimeIn this way, third parties are left unprotected in the event of financial problems, particularly those due to non-contractual liability that do not have the possibility of selecting their debtors.
For this reason, the collective society offers a flexible and much more efficient regime, which at the same time defines a unlimited liability of its members.
A personal responsibility
The partners are not part of the contractual relationships that the company or company has with third parties, so the Indirect liability does not derive from such relationships..
In reality, the opposite is true, the legislation defines a responsibility that aims to protect third parties that may be affected. Therefore, a mandatory regime is defined.
The responsibility of the partners is greater than that of the company itself, in such a way that it has a certain similarity with the link. Reason why it can be applied mutatis mutandis, as well as certain precepts of the Spanish Civil Code, those related to the guarantee, mainly those that deal with accessories.
By last, the associate's personal responsibility, only amounts to compensation for damages and does not oblige the latter to fulfill the specific contract between the company and the third party.
A co-responsibility
The responsibility of the associates in a company is joint, which enables the creditor to make free use of the ius choiceis, In other words, you can claim any partner of your choice who pays the entire debt and of ius variandi, which means that the partner claiming the debt can change for many reasons.
The Solidarity passive regime of the Civil Code. The most remarkable thing about this responsibility is that solidarity is characterized by benefiting external relations, but not always considering internal relations, between joint debtor partners.
The first, the partner has the opportunity to claim the reimbursement of the money of what he has paid as joint and several to a creditor, since the obligations and debts belong to the company, in other words, to all its associates in their proportional part.
Is a type of provisional liability and not supervised by any institution, but rather a decision in which the partners are free to select the internal regime with which the proportions of financial responsibilities will be shared.
Unlimited liability
In that Post 127 of the Civil Code it is defined that the partners respond with all their assets, present and future. The opposite occurs in the cases that the partners of SL or SA, since here the responsibility is not limited to what is provided as equity value.
A subsidiary responsibility
In that post 237 It is defined that the creditors of the company can be directed against the partners in the only case that they have excused the social asset, in other words, when the company does not have the solvency to pay the debt contracted.
This post offers partners a unique analog travel benefit that you will be able to use the default guarantor.
In this circumstance, the creditor can sue both parties, counting on the benefit of the excusión in the execution phase. The partner may defend the seizure of their assets by indicating to the creditor those assets that belong to the company, so the creditor must take them first to settle the debt and if these were not sufficient, it would be the case that the personal assets of the partners, equalization or embargo.
This system is designed with the purpose of incentivizing the partner, which apparently has more information than the creditor about the company's assets with which it can settle its debt, collaborating and speeding up the entire process so that the creditor receives payment as soon as possible, instead of forcing the creditor or his Corresponding lawyer search the assets that the company has on file, wasting a lot of time, money and effort.
Effects of change on partners
The incoming partnerSpeaking of a company already formalized, it is a partner that joins an association and immediately acquires responsibilities in multiple aspects, mainly debts existing at the time of joining the company and apparently future debts.
The outgoing partnerIn other words, those who have left a functional company must respond with their proportional part of the debt as of their departure, since post 1205 of the Civil Code defines that the total consent of the creditor is required to carry out the necessary novation. . to free the partner from future debt liabilities.
