Separation of partners in companies declared bankrupt
The right of separation of partners in companies declared bankruptcy
In this article we will study the repercussions of the Supreme Court Judgment nº4/2021, of January 15 (Rec. 2424/2018), since This has clarified the criteria to be followed with reference to the partner’s right of separation in companies in bankruptcy. In particular, it has stated that the exercise of said right gives rise to a:
“the partner’s right to reimbursement from the company for the amount at which the value of his share in the company is set, such right having a nature similar to that of the right to receive the assets resulting from the liquidation in the proportion corresponding to its participation in the social capital”.
Consequently, in the event of liquidation in bankruptcy of the company, this implies that its satisfaction will take place after the payment of all credits from third parties that maintain links with the company, but with preference over the rest of the partners. This has been reiterated and confirmed by subsequent rulings such as Supreme Court Judgment No. 64/2021, of February 9.
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Moment in which the right of separation becomes effective
To date, there have been several theories supported by the jurisprudence of lower courts regarding the moment when membership ceases to be. In particular, three theories have been debated:
- Declaration theory: moment of communication to the company of the exercise of the right of separation. This theory has been supported by various judgments such as the judgment of the Provincial Court of La Coruña, of March 28, 2018. In short, it establishes that the loss of membership status could occur “when the partner communicates to society its will to separate”.
- Theory of reception: moment of reception of the previously mentioned communication (“receptive communication”). This theory has been supported by various judgments, such as the judgment of the Provincial Court of Barcelona, of June 20, 2019.
- Reimbursement theory: moment in which the member receives his settlement (that is, “[c]when the reimbursement of the membership fee, since the communication is only a budget for the exercise of the right”). This theory has been supported by various judgments such as the judgment of the Provincial Court of Castellón, of January 26, 2017, or that of the Provincial Court of Malaga, of May 9, 2019.
The latter, the reimbursement theory, is the one the Supreme Court opted for in its judgment of January 15, 2021, mentioned above.
Analysis of Supreme Court Judgment No. 4/2021, of January 15
Then we will develop the issues dealt with in the aforementioned sentence, that is, the moment in which the repayment credit of the dissident partner arises and the loss of his status as a partner, the character bankruptcy or extra bankruptcy credit and its classification.
First, the moment of the reimbursement credit (right to receive the assets in the proportion corresponding to the partner’s share in the capital company) takes place with the exercise by the partner of the right of separation, specifically, during the receptive communication to the company by the partner of the exercise of his right.
Secondly, the TS affirms that the membership condition is not lost at the time of origin of the credit. In capital companies, it will be when the corporate relationship has been liquidated. This means that as long as this does not happen, he will continue to be a partner and will maintain ownership of the rights and obligations of said position. The extinction of the partner bond “only takes place when the partner is paid the value of his participation” and in the meantime:
“the partner continues to be and maintains ownership of the rights and obligations inherent to such condition (art. 93 LSC)”. (He says that), “[i]n conclusion, the right to receive the value of the social participation after the separation of the partner is only satisfied when it is paid, because the condition of partner is not lost when the company is notified of the exercise of the right of separation.”
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Therefore, in the event that there is no consensus on the value of the shares of the partner who exercises his right of separation and an independent expert is appointed to determine in his opinion said value, the partner will continue to hold said title until the process is completed and their shares are liquidated.
This value is the one that must be paid to the partner within the term of two months (since the expert determines the value) established in the art. 356 LSC. If a court later estimates that the value of the shares is different, the partner who has received the payment will have the obligation either to return part of what was received if the valuation given is less than that of the expert, or to demand the difference if the rating given is higher.
Thirdly, in order to determine whether the loan of the separating partner has the status of bankruptcy or extra-bankruptcy, we must be at the moment in which the partner informed the company that he was exercising his right of withdrawal. In the event of the communication having occurred before the declaration of bankruptcy, we will be facing a bankruptcy credit. Otherwise, if the communication is later, it will be an extra bankruptcy credit.
Fourth, the Supreme Court maintains that the reimbursement credit is similar in nature to a financing business of the society, “as soon as it supposes recovery of the investment made by the partner“, and this derives, as we will explain below, in the subordination of the credit.
On the other hand, although this is not the reason for the STS analyzed, we will explain that if the right of reimbursement is immediate and, as such, directly payable to the company since the independent expert issued his report, the administrators of the company that has not yet entered bankruptcy have a duty to pay since the valuation report was known. By not doing so, they breach their duties, causing damage to the separating partner, who could bring an individual action for ex art liability. 241 LSC against administrators who have not reimbursed the value of their participation.
We can conclude that the partners who have seen their credit condemned to the classification of subordinate (or even before it occurs), have the right to directly require administrators to comply with the duty of art. 356 LSC. If they are not complied with, they will have an expeditious way to claim for the damages caused by these administrators who have not satisfied their credit promptly and in the terms established by law.
Therefore, the partner who exercises the right of separation retains his condition until his share is repaid. In addition, in the event that the separation occurs before the declaration of bankruptcy, the partner’s credit will be subordinated without prejudice to the possible eventuality later due to a dispute in relation to the determination of the amount thereof.