Insolvency, certain, liquid and exigible debt. Joint venture agreement. Solidarity towards third parties

DREPTUL AFACERILOR

Abstract

The shareholders’ solidarity arising from a joint-venture agreement exclusively operates in favour of the beneficiaries to which it provides the works representing the object of the joint-venture and against the shareholders (all shareholders equally and to the same extent). The alleged debts to the services/works providers shall not exclusively fall within the responsibility of the insolvent debtor (acting as shareholder), however, they are debts pertaining to the joint-venture, with regard to which there is such solidarity only towards third parties, which the debtor itself may be required to pay in a percent of 100%, independently of percent agreed upon in the joint-venture, exclusively binding on the shareholders. The claimant company, as co-shareholder, especially under the circumstances in which the latter holds a percent of 99.99 % of the benefits, but also of the loss, also acts in the capacity as Leader of the joint-venture through the agency of which, according to the parties’ agreement, all payments are made both to the works or services providers and to the tax bodies or other creditors of the joint-venture. Therefore, the company does not have a certain, liquid and exigible debt against its co-shareholder, in relation to which the general insolvency proceedings have been initiated ( within the meaning of art. 5 item 20 of Law no. 85/2014), and therefore, such a debt cannot be recorded on the list of creditors in the preliminary table of claims.