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The Resignation of the Director of the Company and the Scope of his Liability

The doctrine has repeatedly acknowledged the the possibility for the directors of a company to voluntarily resign from their position. However, when such a waiver is submitted by the sole administrator, it is necessary to take into account the compliance with certain requirements in order to avoid a possible paralysis of social life and, therefore, that a situation of acephaly arises, i.e. situations in which the company has no administrative body.

1. Reliable communication to society

One of the main requirements to be taken into account is the the manner in which such a waiver is carried out. In this respect, it is necessary to refer to the provisions of Article 147 RRM, which states: "The registration of the resignation of the directors shall be effected by means of a written resignation of the director, given by the director and duly notified to the company, or by virtue of a certificate of the minutes of the General Meeting or of the Board of Directors, with the signatures certified by a notary, in which the presentation of the said resignation is recorded.."

It is therefore The resignation must be communicated to the company in writing or be recorded at the General Meeting itself.

2. Obligation to call a General Meeting

Notwithstanding the above, although the director has the right to dissociate himself from the company, it must be taken into consideration that in view of his duty of care, should continue its management and consequently its responsibility until it takes the necessary steps to fill the vacancy.Otherwise, the company could be paralysed and thus become paralysed.

For all these reasons, the doctrine, including the Directorate General of the Registry and Notary's Office, understands that, even if the waiver is presented, in compliance with its duties, the outgoing director must convene a general meeting with the appointment of a new director on the agenda.

3. The company's situation of acephaly

Once the General Meeting has been called for the appointment of a new director, two situations may arise:

  • The General Meeting accepts the resignation and a new director is appointed. In this case, registration in the Commercial Register should be made.
  • The General Meeting accepts resignation, but no new post is appointedThis situation would lead to the acephaly situationThis would leave the company in a serious situation, as the lack of an administrative body would prevent the company from functioning and, consequently, would be one of the causes for dissolution provided for in article 363 of the Capital Companies Act.

Notwithstanding the above, and despite the fact that it is considered that its management, and therefore its responsibility, would continue until the vacancy is filled, the The Supreme Court has considered that the accreditation of the convening of the General Meeting would be sufficient for it to be understood that it has complied with its obligation of diligence. and therefore limit its liability.

4. Administrator liability

A separate issue from the duties of the director at the time of resignation is the liability for acts subsequent to the resignation and until the registration of the resignation in the Commercial Register..

In this respect, a priori and as established by the Supreme Court Judgment of 30 October 2001, as long as the resignation has not been entered in the Register, the resignation has no effect vis-à-vis third parties and, therefore, he or she is liable for acts occurring after the resignation..

However, if if the waiver has not been registered for reasons beyond the administrator's control, the administrator will not be liable, and his liability will depend on the individual case and his previous diligence.

In this sense, the Supreme Court's judgement of 22 March 2007 states:

"The registry entries of termination agreements are not constitutive in nature, as this is not required by any provision, The duty to register the new administrators corresponds to the duty to register the new administrators, without any liability for non-registration being incurred by those who have been dismissed."

In the same sense, we can highlight the Supreme Court ruling of 3 July 2008:

"What this doctrine says with regard to the non-constitutive nature of registration, and the fact that the actual cessation must therefore be taken into account in order to determine the liability of the administrator, is that liability can only be extended to acts occurring up to the time at which it validly ceased to exist.third parties in good faith cannot rely on the lack of registration to claim liabilities arising from acts occurring after the cessation and before its registration".

However, the same judgment refers to the fact that the consequences of the lack of registration vis-à-vis third parties are different when it comes to establishing the initial day for calculating the limitation period and, to this effect, it establishes that:

"It must be understood that, if there is no evidence of knowledge on the part of the affected party of the time at which the administrator's effective termination took place, or if his bad faith is not otherwise accredited, the computation of the four-year time limit for the expiry of the limitation period cannot begin until the time of registration.The fact of the cessation can only be opposed to the third party in good faith from that moment onwards and, consequently, from that moment onwards, the party entitled to bring the action cannot deny his ignorance of it".

Therefore, in view of the above, it is important, in order to limit the director's liability, that in the event of resignation of the director, he/she immediately convenes the General Meeting to appoint a new director, otherwise his/her liability could be extended to acts subsequent to the resignation of the director.

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April 10, 2022