Disputes with professionals. Action for directors' liability against the company. Conditions for liability

Appeal against the measure of the judicial liquidator rejecting the request for reinstatement of the statement of claim and for denial of the statement of claim as late. Delay in lodging the appeal.

Abstract

The plaintiff brought an action before the court seeking an order that the defendants pay the damage caused by the conclusion of sale and purchase contract x, a decision taken in breach of the duty of care and diligence laid down by law and by the contracts of mandate for the work carried out by the officers.

In the case of directors or members of the supervisory board of a public company, the criterion adopted by Art. 1441 para. (1) of the Companies Act is the objective, abstract criterion of prudent and diligent management in the normal, ordinary, average manner. The fault of the directors of a public company shall be assessed according to the objective criterion of the good director regardless of the training and general conduct of those appointed and, by way of derogation from the rule in Art. 2018 para. (1) of the Civil Code, regardless of whether the mandate is for valuable consideration or free of charge.

The administration of a business is different from the administration of a civil estate, so administrators are compared to other administrators, not ordinary people, to determine the degree of fault. For that reason, both the first court and the court of appeal took into account in the resolution of the case the contracts previously concluded with the same company, the business relations with the [...] group, the agreement obtained by the defendants from the Chairman of the Board of Directors for the conclusion of the contract and the factual situation at the time of the conclusion of the sale-purchase contract, which required the sale of the entire quantity of wheat to a single buyer at the best price, as determined by the Board of Directors.

Since the management of an undertaking essentially involves commercial risks, the objective criterion for assessing fault is supplemented by a subjective element, specific to the commercial field, consisting of the circumstances at the time the decision was taken which led to the occurrence of the damage for which compensation is sought, as provided for in Article 1441(2) of the Companies Act.

Given that the contractual obligations of the members of the management bodies are of diligence (of means) and not of result, the burden of proving fault lies with the company, which has not been done in this case.