CORPORATE:
Extinct company and obligation for former shareholders to enter into the final sales contract
In the event that a company enters into a preliminary contract for the sale of real estate and subsequently becomes extinct, an obligation arises for the shareholders to proceed with the execution of the final contract, thus resulting in a succession of the former shareholders in the company’s obligation. This conclusion is reached by a recent judgment of the Court of Cassation, according to which it is legitimate for the prospective buyer of the property from a company to sue the company for the execution of the final contract; and if the company has become extinct, there is no obstacle to obligating those who were shareholders of the extinct company to conclude the sales contract.
The Court of Cassation’s conclusion is in line with the principle that not all legal relationships pertaining to the company cease upon its extinction: some, such as pecuniary relationships but also, as in the present case, obligations of “facere,” pass on to the former shareholders. Finally, as emphasized by the judgment, the shareholders assume the obligation to enter into the final sales contract even if, in the present case, the final liquidation balance has not made any provisions regarding the preliminary contract previously concluded by the company.
Administrators without delegated powers: not exempt from liability
The fact that administrators without delegated powers did not participate in certain assemblies or board meetings does not constitute grounds for exemption from liability. Once the position is accepted, the failure to participate in the “corporate life” of the company can be a presumptive element of disinterest in the company’s affairs and therefore be identified as evidence of negligence and inexcusable fault. Furthermore, according to a recent ruling, liability for administrators without delegated powers can also arise from a lack of knowledge due to a failure to diligently detect any illicit actions taken by other administrators in the absence of the former without justification.
The general principle that all administrators are “required to act in an informed manner” also applies to administrators without delegated powers. They must also take action to prevent or interrupt situations of unlawful management by the entire administrative body. A particular application of this principle is found in case law when clear irregularities can be inferred from the financial statements, especially in the presence of specific observations by the board of auditors. These situations are easily recognizable even by non-operational administrators with the exercise of ordinary diligence. The statute of limitations for the company’s action for liability against administrators (including those without delegated powers) is five years, but it is suspended for the entire duration of the current management term.
Actual modifications to the corporate purpose and shareholder’s right of withdrawal
A recent study by the National Council of Notaries has examined the situation in which “de facto” modifications are made to the corporate purpose of a limited liability company without being decided upon based on a shareholder resolution.
As a general rule, the completion of operations that “substantially modify the corporate purpose established in the articles of incorporation” triggers the right of withdrawal for absent or non-consenting shareholders. However, if the operation in question is not deliberated through a shareholder meeting (for any reason, such as lack of convocation or absence from the agenda) but is decided upon by the administration and implemented through statements made by the company’s “representative,” it is unclear whether – while the responsibility of the administrators remains intact – the acts that materialize the decision not deliberated in the assembly are valid and effective for the company and third parties, and whether shareholders can exercise the right of withdrawal.
The preferable thesis at present – supported by case law – considers the operation that substantially affects the corporate purpose and is carried out de facto by the administrators as effective, but subject to the exceptio doli (understood as an action that reveals an abuse of rights by others and paralyzes their action). Ultimately, according to the most accredited thesis, the rights acquired by third parties in good faith remain unaffected.
Regarding the withdrawal by dissenting or absent shareholders, the orientation described here still deems it admissible to exercise this right by analogy with the provisions regarding joint-stock companies, in which withdrawal can also be justified by a fact other than a resolution, including a contractual act, provided that it substantially modifies the corporate purpose.
RESPONSIBILITY UNDER LEGISLATIVE DECREE 231/2001
Decree 231, organizational models without specific rules for ordinary employees
In the context of liability under Decree 231, the existence of a dual organizational model, one for senior employees and another for all other individuals associated with the company, is not admissible. It is also not sustainable that the criteria for assessing the adequacy and effective implementation of the model are different depending on whether the underlying offense was committed by top management or subordinates. The criteria, in fact, remain the same but may be “applied” differently to accommodate the different positions held by those responsible for the wrongdoing. These conclusions were reached by a recent ruling of the Milan Court, which convicted a well-known multinational company for the failure to adopt organizational models capable of detecting the commission of certain offenses.
From a legal perspective, one of the crucial points, where there is almost no precedent, is the interpretation of Article 7 of Decree 231/2001, which is dedicated to non-senior employees and the issue of organizational models related to them. The aforementioned Court admits the business practice that does not recognize a dual model, one for top management and one for all other employees. Otherwise, it is stated that an unjustified multiplication of organizational models and precautionary rules would result.
LDP remains available for any further information or insights on the topics discussed.
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