La Subsidiary Liability, works as exclusion and ultimately residual in the event of a non-payment by a company.
If, when the due date of this debt has arrived, the company, as the main debtor, does not comply with its payment obligations, then it may resort to the demand for payment to the subsidiary managers associated with the company.
This will be done as long as 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 resolve the problem or fulfill its corresponding obligation.
What mainly characterizes vicarious liability?
It is characterized in essence by being one in which the total debt of a company can be demanded, to the subsidiary debtors, only in the event that an attempt has been made to collect the debt, without any success in the attempts.
That is when the subsidiary debtor has to answer, in the only case that the main debtor, that is, the company as a whole, has not been able to respond financially to the problem presented by the company.
This is why, if a company owes you a certain amount of money, you should try to collect from them 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 vicarious liability that have those members of the society with the debts acquired by the company.
Subsidiary liability, as established by Law 58/2003, General Tax, is that responsibility that falls on a person when there is a breach of contract by a third party in an association.
Example of Subsidiary Liability
E.g., a company is a subsidiary manager when the direct contractor of the employees, does not comply with the labor and social security obligations with their workers.
This subsidiary liability falls on a person who defaults on the payment of a debt by a third party. In this area, due to the fact that 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 corresponding legislation determines as guarantors of the debtor.
For example:
To be more specific, this does not mean that the debt passes into the hands of a third party, since only the main person responsible can be required to pay, but if this responsibility was mentioned in the contract, it will have to be complied with legally, to clarify this point further, it should be noted that the responsibility of the partners within a group or association is
- Our Team
- Solidarity
- Unlimited
- Subsidiary
Article 127 C. de C. summarily determines that All the partners that are part of the collective partnership are personally and jointly obligated, with all the assets they own, to the resulting operations that are carried out in the name and on behalf of the association, under its signature, for which you will have to answer for all if you are associated, since both gains and losses are shared.
Also, the art. 237 C. of C. establishes that property or personal possessions of the general partners that were not included in the assets of the association when it was formed, 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.
La responsibility of all partners It includes that established in contracts, that of illegal acts and legal responsibility.
Economic rationale
The partners that belong to the SL and SA acquire a limited liability at the time of submitting to the capital regime.
Furthermore, the Collective partnerships are not subject to any similar regimeTherefore, third parties are left unprotected in the event of financial problems, particularly those due to tort liability who do not have the opportunity to choose their debtors.
For this reason, the collective society offers a flexible and much more efficient regime, which at the same time establishes 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 vicarious liability does not derive from such relationships.
In fact, completely the opposite happens, the law establishes a responsibility that aims to protect third parties that could be affected. Therefore, a mandatory regime is established.
The responsibility of the partners is higher than that of the company itself, in such a way that it has a certain similarity to the surety. Reason why, it can be applied mutatis mutandis, as well as certain precepts of the Civil Code of Spain, those related to the guarantee, mainly those that deal with accessories.
Finally, the associate's personal responsibility, only goes up to compensation for damages and does not oblige the latter to comply with the specific contract between the company and the third party.
A joint responsibility
The responsibility of the associates in a company is joint, which allows the creditor to make free use of the jus electionis, that is, you can claim any partner of your choice who pays the entire debt and the ius variandi, which means that the partner who claims the debt can change for various reasons.
The passive solidarity 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 possibility of claiming the reimbursement of what he has paid as jointly and severally liable to a creditor, since the obligations and debts belong to the company, that is, to all its associates in their proportional part.
It's a type of provisional liability and not supervised by any institution, rather it is a decision in which the partners are free to choose the internal regime with which the proportions of the economic responsibilities will be shared.
Unlimited liability
At Article 127 of the Civil Code it is established that partners respond with all their assets, present and future. It happens in the opposite way in the cases that the partners of SL or SA, since here the responsibility is not limited to what is contributed as capital value.
A subsidiary responsibility
At Article 237 It is established that the creditors of the company can be directed against the partners in the only case that they have made excuses from the social assets, in other words, it is when the company does not have the solvency to pay the debt contracted.
This article gives partners a unique analog tour benefit that you will be able to use the default guarantor.
In this case, the creditor can sue both parties, relying on the benefit of excusión in the execution stage. The partner may defend the seizure of their assets by indicating to the creditor those assets that the company owns, so the creditor must first take these to settle the debt and if these were not sufficient, it would be the case that the personal assets of the partners , matching or embargo.
This system is designed with the purpose of incentivizing the partner, which obviously has more information than the creditor regarding the assets of the company with which it can settle its debt, collaborating and speeding up the entire procedure so that the creditor receives payment as soon as possible, instead of forcing the creditor or your respective lawyer to look for the assets that the company has registered, wasting a lot of time, money and effort.
Effects of change on partners
El incoming partner, speaking of a company already formalized, it is a partner who joins an association and immediately acquires responsibilities in various aspects, mainly debts existing at the time of joining the company and obviously future debts.
El outgoing partner, that is, the one who has left a functional company, must respond with his proportional part of the debt as of his departure, since article 1205 of the Civil Code establishes that the total consent of the creditor is necessary to carry out the novation necessary to release the partner from future liabilities due to debt.