The rule fits in two sentences. The director of a Spanish limited company answers with his personal assets for the damage he causes through acts contrary to the law or the articles of association or through breach of the duties of the office, provided there was wilful misconduct or negligence (article 236 of the Companies Act, the Ley de Sociedades de Capital), and he answers in addition for the company’s debts, even if he has harmed no one, if the company falls into a cause for dissolution and he lets two months pass without calling the general meeting (article 367). Practice in the courts is narrower. The typical claim against a director is filed by a creditor who has tried to collect from a company with no assets, and it is won or lost on two dates, the day the company fell into a cause for dissolution and the day the debt arose. Fault, damage and diligence are argued a good deal less than the statutory text suggests, because article 367 allows the claimant to dispense with all of them.
What follows covers the three routes by which a director’s personal assets can be reached, the corporate route, the tax route and the insolvency route, with the articles that support each one, and dwells on what usually goes unexplained, the resignation that is never registered, joint directorship, the de facto director and the board that delegates. It applies to the private limited company (SL) and to the public limited company (SA) except where I point out the difference.
The duties of the office and how far business discretion goes
The Companies Act imposes two central duties on the director. The duty of diligence (article 225) requires him to act as an orderly businessman, to devote to the office the time it requires and to demand from the company the information needed to decide on an informed basis. The duty of loyalty (articles 227 to 229) requires him to act in the company’s interest, to keep confidential what he learns through the office even after leaving it, to abstain in matters where he has a conflict of interest and not to take the company’s business opportunities for himself. Breach of loyalty obliges him to compensate and also to return whatever he gained through the breach (article 227.2), and the articles of association cannot soften that regime (article 230).
Article 226 protects business discretion. A strategic or commercial decision does not give rise to liability, even if it turns out badly, if it was taken in good faith, without personal interest, with sufficient information and following an adequate decision-making procedure. In practice that protection works when there is a documentary trail. The director who can produce the report he requested, the minutes of the deliberation and the figures he worked with is covered by article 226. The one who decided from memory and without papers is not. Nor does the rule reach the obligations the law imposes without any margin, such as preparing the accounts, calling the meeting when there are losses or filing for insolvency when the company cannot pay. There is nothing to weigh up there.
Article 236 closes the system. Fault is presumed when the act is contrary to the law or the articles, approval of the act by the general meeting does not exonerate, and the regime extends to de facto directors, to the natural person representing a corporate director and, where the board has not delegated powers, to whoever holds the highest management position in the company.
The company’s action for liability
The company’s action, the acción social (article 238), repairs the damage caused to the company. It is brought by the company itself following a resolution of the general meeting, which any shareholder may ask to have voted even if it is not on the agenda, by ordinary majority and without the articles being able to require a higher one. The resolution to pursue liability entails the director’s removal.
Shareholders holding five per cent of the capital may bring it directly (article 239) if the directors do not call the meeting they requested, if the company does not sue within the month following the resolution or if the meeting voted against, and they may do so without going through the meeting when the action is based on a breach of the duty of loyalty. Creditors have a subsidiary standing (article 240), only where neither the company nor the shareholders have brought it and the company’s assets are insufficient to pay them.
Whatever is recovered goes into the company’s coffers and not into the claimant’s pocket. That is why creditors rarely use it and minority shareholders use it in disputes between partners, when the director has diverted business, set himself a remuneration nobody approved or contracted with his own companies.
The individual action
The individual action (article 241) repairs the damage the director causes directly to a shareholder or a third party. Creditors attempt it when the company has closed without being wound up and they have been left unpaid. The courts allow it on conditions. It is not enough that the company fails to pay, because the non-payment is the company’s and the director is not its guarantor. What is needed is the director’s own conduct having produced that non-payment, and the case that succeeds most regularly is the de facto closure with disappearance of assets, the company that stops trading, is not dissolved, is not wound up and whose assets vanish without anyone being able to explain where they went. The creditor must prove the link between what the director did and his unpaid claim, and when he cannot, the case is lost.
Liability for debts under article 367
This is the most used route and the one that frightens most, because it dispenses with fault and damage. The company falls into a statutory cause for dissolution, the most frequent being that of article 363.1.e), losses that leave net equity below half the share capital, although cessation of activity for more than a year or deadlock of the corporate bodies also qualify. From that moment the director has two months to call the general meeting to resolve on dissolution or on removing the cause (article 365). If the meeting does not convene or votes against dissolution, he has a further two months to apply for judicial dissolution (article 366). If the company is also insolvent, the two months are for filing for insolvency proceedings, counted from when he knew or ought to have known of the insolvency (article 5 of the Consolidated Insolvency Act, the Texto Refundido de la Ley Concursal). The director who does none of those things is jointly and severally liable for the company’s obligations arising after the cause for dissolution appeared (article 367).
Two details decide these cases. The first is that the law presumes the debts claimed to be later than the cause for dissolution, unless proven otherwise, and that proof falls on the director. The second is that the evidence of when the cause appeared is the accounts. Accounts prepared, approved and filed on time make it possible to date the moment net equity fell below half the capital. Without filed accounts, the creditor produces an expert report on whatever balance sheets he can obtain and the director is left with no instrument to show the debt predates the cause.
The threshold is very low. A private limited company with the usual share capital of three thousand euros falls into a cause for dissolution when its net equity drops below one thousand five hundred, and since Law 18/2022 an SL can be incorporated with one euro of capital, so any loss-making year places it in cause. The insolvency reform of Law 16/2022 added a way out. The director who within those two months notifies the court that negotiations with creditors have opened for a restructuring plan, or who files for insolvency, is not liable for later debts while that notification produces effects, and the liability revives if the negotiations fail and no insolvency filing follows.
| Route | Who claims | What is claimed | What must be proven | Time limit |
|---|---|---|---|---|
| Company’s action (arts. 238 to 240 LSC) | The company, shareholders with 5 % or creditors subsidiarily | The damage caused to the company’s assets | Act contrary to law, articles or duties, with fault, and damage to the company | Four years from when it could be brought (art. 241 bis) |
| Individual action (art. 241 LSC) | The injured shareholder or third party | The direct damage suffered by the claimant | The director’s own conduct directly causing the damage | Four years from when it could be brought (art. 241 bis) |
| Liability for debts (art. 367 LSC) | Any creditor of the company | The full company debt, jointly and severally | Cause for dissolution and a later debt, which is presumed | Four years, counted from resignation where the director has left office |
| Tax derivation (art. 43 LGT) | The Tax Agency by administrative decision | The tax debt and, in some cases, the penalties | Infringement or cessation of activity with debts outstanding and the director’s passivity | Four years from the last collection step against the company |
| Insolvency liability (arts. 442 to 456 TRLC) | The insolvency administrator or the public prosecutor within the proceedings | Full or partial coverage of the shortfall | Wilful misconduct or gross negligence that caused or worsened the insolvency | Within the classification phase of the insolvency proceedings |
At the firm we defend directors against these claims and we also bring them on behalf of creditors who have come up against an empty company. The work almost always starts with the accounts and the dates, which is where the matter is decided, and continues with choosing the right route, which is rarely the first one that occurs to whoever is claiming. You can see how we handle these matters on our civil and commercial law page.
Several directors, joint directors and the board
A company may be managed by a sole director, by several directors acting severally (solidarios), by several joint directors (mancomunados) or by a board (article 210). With several directors each may act alone and liability falls jointly and severally on those who took part in the harmful act (article 237). The one who did not take part escapes only if he proves he was unaware of the act or that, being aware, he did everything appropriate to avoid the damage or at least expressly opposed it. With joint directors, representation requires joint action, and the director who contracts on his own binds the company poorly and exposes himself. What is not shared out is the obligation to call the meeting under article 365, which rests on each director. If his colleague refuses to call it, the joint director who wants to comply must leave a written record of his demand and use the instruments the law provides to force the convening, because one director’s passivity does not exonerate the other.
On a board, the directors who adopted the harmful resolution are liable. The director who voted against and had it recorded in the minutes protects himself. The one who was absent without justification does not. Permanent delegation to a managing director (article 249) transfers day-to-day management but not the duty of supervision, and there are powers the board cannot delegate (article 249 bis), among them the preparation of the accounts and the calling of the general meeting, which are precisely the ones that generate most liabilities. Non-executive directors who merely sign what is put in front of them are liable like the rest.
De facto directors, managing directors and attorneys
Article 236.3 treats as a de facto director anyone who in practice performs the functions of the office without title, with a void or expired title or under another title, and also the person on whose instructions the company’s directors act. That covers the majority shareholder who gives the orders while a relative or an employee appears as director, the director whose appointment has expired (articles 221 and 222) and who keeps signing, the general attorney who runs the business in practice and the former director who left office in the Registry but not in the office. The attorney who merely executes what the director decides is not a de facto director. The one who decides is, whatever his power of attorney is called.
The General Tax Act (article 43) and the Consolidated Insolvency Act (article 442) use the same concept, so a de facto director can have liability derived to him by the Tax Agency and be declared a person affected by the insolvency classification just like a registered one. Where the director is a legal person, the natural person representing it is jointly and severally liable with it (article 236.5), and whoever accepts that representation for convenience within a group usually finds out too late.
The Tax Agency and Social Security claim on their own
The Tax Agency does not sue. It declares the director liable through a derivation of liability decision, after hearing him, and that decision is enforceable unless it is appealed and suspended. The periods for submitting allegations and appealing are counted in days.
The most common derivation is the subsidiary one under article 43.1 of the General Tax Act, which has two limbs. Limb a) requires that the company committed a tax infringement and that the director failed to do what was necessary to comply, consented to non-compliance by his subordinates or adopted resolutions that made it possible, and it extends to penalties. Limb b) requires no infringement at all. It applies to the director of a company that has ceased its activity, for the tax debts outstanding at the time of cessation, when he did not do what was necessary to pay them or took measures that caused the non-payment. It is the case of the company that is simply abandoned. Article 43.2 adds derivation to the director of a company that continues trading and repeatedly files withholding or output tax returns without paying them. Subsidiary liability requires the company first to have been declared insolvent for collection purposes (articles 41.5 and 176), which in practice means the Tax Agency reaches the director once it has confirmed there is nothing in the company.
Joint and several derivation under article 42 is more serious and does not wait for that declaration. It reaches whoever causes or actively collaborates in the infringement (article 42.1.a) and whoever hides or transfers the company’s assets to prevent collection (article 42.2.a), in the latter case up to the value of the assets hidden. Emptying the company before the Tax Agency arrives falls squarely there. The Administration’s right to demand payment from the subsidiary liable party is time-barred four years after the last collection step against the company (article 67.2), so a director who left long ago can receive the derivation well after leaving office, always for facts of his own tenure.
The Social Security Treasury has no article 43 of its own. It relies on article 18.3 of the General Social Security Act, which allows it to demand contributions from whoever is liable under any law, and through that door it applies itself, administratively, the liability for debts under article 367 and the liability for damage under article 236 of the Companies Act. It is a frequent and little-known derivation, and it follows the same scheme, a file with a hearing and an enforceable decision, with the particularity that the Treasury has to prove the cause for dissolution with the filed accounts or with whatever documentation it can gather.
Nothing prevents the Tax Agency deriving its debt, Social Security its own and a supplier suing for his. They are different creditors with different instruments and each claims its own credit. What cannot happen is that the same debt is collected twice.
If the company enters insolvency proceedings
The Consolidated Insolvency Act, reformed by Law 16/2022 in force since 26 September 2022, adds a liability distinct from the ones above. Once insolvency is declared, the company’s action against the directors can only be brought by the insolvency administrator, and the article 367 claim is not admitted while the proceedings last, with those already filed being stayed. The discussion moves to the classification phase.
The insolvency is classified as culpable when wilful misconduct or gross negligence of the debtor or its de jure or de facto directors played a part in generating or worsening the insolvency (article 442). The law presumes culpability without admitting proof to the contrary in cases such as a material accounting irregularity, concealment of assets or a fraudulent removal of assets in the two preceding years (article 443), and it presumes it subject to proof to the contrary where the duty to file for insolvency in time was breached, where the debtor failed to cooperate with the court or where in any of the last three financial years the accounts were not prepared, audited or filed (article 444). That last presumption explains why filing the accounts, which so many directors of small companies regard as a formality, is in fact the piece that holds up their defence on every route.
A judgment classifying the insolvency as culpable disqualifies the director from managing other people’s assets and representing anyone for a period of two to fifteen years, makes him lose any claims he held against the company and may order him to return what he obtained and to compensate the damage (article 455). If the proceedings have opened liquidation, the judge may in addition order him to cover the shortfall in full or in part, the portion of the liabilities that cannot be paid with what there is, to the extent his conduct caused or worsened the insolvency (article 456). The difference from article 367 is fundamental. Article 367 makes him answer for debts arising after the cause for dissolution without any need for fault. Article 456 makes him answer for the final hole, but requires gross negligence, a causal link with the insolvency and an express order within the proceedings.
In small companies it is common for the insolvency to be declared without assets, with nothing to pay even the costs of the proceedings. In that case the classification phase opens only if creditors holding at least five per cent of the liabilities request the appointment of an insolvency administrator to examine whether there are indications of culpability. It is a decision the creditor has to take with the figures in front of him, because he advances the cost.
The criminal route is a separate case
Civil and criminal liability are independent. A criminal acquittal does not close the civil claim, and a conviction carries with it the civil liability arising from the offence (article 116 of the Criminal Code). The director is criminally liable for offences he commits acting on the company’s behalf (article 31), and in the corporate field the most frequent are falsification of the annual accounts (article 290, one to three years’ imprisonment and a fine of six to twelve months), concealment of assets from creditors (article 257, one to four years’ imprisonment and a fine of twelve to twenty-four months), punishable insolvency through management that causes or worsens the insolvency (article 259, one to four years’ imprisonment and a fine of eight to twenty-four months), preferential treatment of creditors while insolvent (article 260, six months to three years’ imprisonment) and unfair administration (article 252, punished with the penalties for fraud, six months to three years in its basic form). The offence against the Public Treasury requires an evaded amount above one hundred and twenty thousand euros per tax and year (article 305, one to five years’ imprisonment and a fine of one to six times the amount) and the offence against Social Security an amount above fifty thousand euros over four calendar years (article 307, with the same prison terms).
Some creditors file a criminal complaint for concealment of assets or punishable insolvency as a form of pressure, and the investigating court is a far less comfortable place than the commercial court in which to negotiate. At the firm we conduct the criminal defence of directors in these proceedings, which require a strategy coordinated with the civil case and with the insolvency proceedings if there are any, and you can see how we approach it on our criminal law page.
Resignation and its registration
A director’s resignation takes effect from when the company receives it, but against third parties acting in good faith the departure cannot be relied upon until it is registered and published (article 21 of the Commercial Code). In practice the creditor sues whoever appears in the Commercial Registry, and it is the former director who has to prove he left earlier and that the creditor knew or could have known. A departure evidenced with a reliable date delimits the tenure, so the director does not answer under article 367 for debts arising after he left nor under article 43 of the General Tax Act for infringements committed by his successors. An unregistered departure leaves all of that open to dispute.
The sole director who wants to leave has an added problem. The Registry will not register his resignation if it leaves the company without a management body, so he must call the general meeting to appoint a replacement before going. If the shareholders do not attend or appoint nobody, he remains on record as director, and that deadlock is one of the situations we see most often at the firm in family companies that have stopped operating. An expired appointment resolves nothing either, because the director with an expired term who keeps managing is a de facto director under an extinguished title and is liable in the same way.
Selling the indebted company to someone who takes the office in order to disappear is not a departure that protects either. The former director remains liable for what happened during his tenure, and if he stays behind the management he is also liable as a de facto director. The buyer of that kind of company faces in addition article 42.2.a) of the General Tax Act and, frequently, article 257 of the Criminal Code.
Limitation periods and the prior attempt at settlement
The company’s action and the individual action are time-barred four years from the day they could have been brought (article 241 bis of the Companies Act). For liability for debts under article 367 the courts also apply four years, counted under the traditional rule of article 949 of the Commercial Code from the director’s departure, with the qualification that an unregistered departure does not start the clock against a creditor who was unaware of it. A director who left five years ago and had his departure registered is out of reach. One who left five years ago and did not register it probably is not.
Tax derivation is time-barred four years after the last collection step against the company, and insolvency liability is dealt with inside the proceedings, so its timing is that of the classification phase. Offences have their own periods (article 131 of the Criminal Code), five years for the prison sentences of up to five years just listed.
Since 3 April 2025, Organic Law 1/2025 requires, for a civil or commercial claim to be admitted, proof of a prior attempt at settlement through an appropriate dispute resolution method, which includes documented negotiation between lawyers. Claims against directors under the Companies Act routes are subject to that requirement. The request to start that attempt interrupts the limitation period, so a creditor running out of time has a tool there, and a director who receives a negotiation proposal should understand that the limitation clock has stopped. Insolvency matters are outside the requirement.
Public limited company, private limited company and a company already dissolved
The liability regime is the same for the SL and the SA. Articles 225 to 241 bis and 363 to 367 apply to both without distinction, and the cause for dissolution due to losses is identical, net equity below half the share capital. What changes is the organisation of the management body. In the SA the appointment lasts at most six years, with the possibility of re-election (article 221), whereas in the SL it is indefinite unless the articles say otherwise, and in the SA management entrusted jointly to more than two people must be organised as a board (article 210.2). The listed SA also has its own corporate governance regime, which I do not touch on here. The SA’s minimum capital of sixty thousand euros makes the loss threshold higher in absolute figures, but it does not change the mechanics.
The extinction of the company does not extinguish the director’s liability either. Cancellation of the registration does not prevent former directors being sued for facts of their tenure within the four-year period, and liquidators are liable to shareholders and creditors for damage caused wilfully or negligently in the winding-up (article 397). Former shareholders are jointly and severally liable for unpaid company debts up to the amount they received as their liquidation share (article 399). Closing a company properly is a process, and closing it badly leaves open every route described above.
How to protect yourself while in office
The most effective protection is accounting and documentary. The accounts are prepared within three months of the financial year end (article 253) and filed within the month following their approval (article 279), and delay not only closes the Registry to the company (article 282) but triggers the presumption of culpability in insolvency and leaves the director without evidence against article 367. With the accounts up to date, monitoring net equity is straightforward and the director knows in which month he has to call the meeting. Significant decisions are documented in minutes and reports, because article 226 only protects what can be shown. The dissenting board member has his vote recorded in the minutes.
Diligence includes internal controls. A transfer approved without verification to a supposed supplier who has changed bank account, or to a supposed executive who orders it by email, is a loss that a shareholder or a creditor may try to attribute to the director. The company has to claim against the bank, as I explain in this post on bank impersonation scams and in this one on recovering money after phishing, and the director has to be able to show that a payment verification procedure existed.
Directors’ and officers’ insurance, D&O, covers claims for damage arising from management, including the company’s action and the individual action, and usually covers civil and criminal defence costs until wilful misconduct is established. Liability for debts under article 367 and tax derivations are excluded in many policies or come in only as an extension with a sub-limit, so the policy has to be read before signing. The insurance works on a “claims made” basis, it covers claims presented while it is in force and excludes facts the director already knew of when taking it out, so buying it once the company already has losses and impatient creditors is of little use. It is taken out while the company is healthy and any claim is notified to the insurer as soon as it arrives, because late notification is the most common excuse for refusing cover.
The articles of association cannot exempt the director from liability. The article 236 regime is mandatory and article 230 only allows certain prohibitions of the duty of loyalty to be waived, case by case and subject to requirements. What shareholders can do is vote to approve the management at the general meeting, which has evidential value but does not exonerate.
With the company in difficulty, some conduct multiplies the risk and should be avoided. Paying the creditors who press hardest and stopping payment to the rest once the company is insolvent falls within preferential treatment of creditors. Returning contributions or loans to shareholders ahead of suppliers is a fraudulent removal of assets. Transferring the business, the customer base or the machinery to another company owned by the same shareholders is the conduct that produces the most convictions under the individual action and for concealment of assets.
What you can do today if you have already been served
If you have received a claim, a demand from a creditor or notice that a derivation file has been opened, the first thing is not to acknowledge a personal debt in writing or sign any document the other side proposes, because an acknowledgement of debt turns an arguable case into a lost one. Nor is it advisable to pay part in exchange for a verbal promise to forget the rest.
Gather the deed of your appointment and, if you left, the deed of your departure with the registration note, the annual accounts for the last four financial years with proof of filing, the minute book, emails and messages with the shareholders about the company’s situation, correspondence with the creditor who is claiming and, if you have one, the D&O policy. Do not delete accounting records or correspondence, because the disappearance of documents is one of the presumptions of culpability and in criminal proceedings it is an added problem.
If you are on the other side and want to collect from a company that does not pay, what you need is the Commercial Registry extract showing the directors and their dates, the filed accounts for the years in which your claim arose and the invoices with their dates. With that it is possible to tell on a first reading whether there is a route against the director or whether the money is elsewhere.
What is at stake and what we do
Whoever answers a claim of this kind on his own puts his personal assets at stake, home included, for debts which in many cases predate the cause for dissolution or the departure and which a poorly rebutted presumption turns into his own. And whoever claims on his own usually picks the wrong route, ends up with a lost case plus costs and lets the action he did have become time-barred. At the firm we analyse the accounts and the dates, establish the real extent of the director’s liability or of the creditor’s claim, and defend or bring the claim on the route that applies, coordinating the civil, administrative and criminal sides when they overlap.
You can tell us about your case on +34 677 841 007 or through the contact page. For the first conversation to be useful, have to hand the deed of appointment or departure, the latest filed accounts, the document you have received with its notification date and a list of the debts being claimed with the dates on which they arose. With that we can tell you at the first consultation what you are facing and what room there is.
Frequently asked questions
I resigned as director but my departure was never registered in the Commercial Registry, am I still liable for the debts?
Against the company and the shareholders the departure takes effect from when it was communicated, but against creditors acting in good faith an unregistered departure cannot be relied upon, so the creditor can sue you as if you were still in office and you will have to prove you left before the debt arose and that the creditor knew or could have known. In addition, the four-year limitation period does not start running against that creditor until the departure becomes known. If you continue to manage in practice, you are liable in any event. The urgent thing is to prove the real date of departure with reliable documents and, if still possible, to obtain registration.
We are two joint directors and the other one acted on his own, am I liable too?
For the specific acts your colleague carried out without your involvement you can escape if you prove you were unaware of them or that, being aware, you did what you could to prevent them or expressly opposed them, and that proof is documentary. From the obligation to call the general meeting when the company fell into losses you do not escape, because that duty rests on each director and the law gives you means to force the convening even if the other refuses. In practice, the joint director who left a written record of his demands and acted has a defence, and the one who simply declined to sign does not.
Can the Tax Agency and a private creditor claim against me at the same time?
Yes, because each claims its own debt with its own instrument. The Tax Agency issues a derivation of liability decision for the company’s tax debt, Social Security does the same with contributions and the supplier sues in court for his invoice. None of those claims is set off against the others because they are different debts. What cannot happen is that the same debt is collected twice, and if the company is in insolvency proceedings the civil claims for debts against the director are stayed while they last.
Do I need a lawyer if I am claimed against as a director, or if I am the creditor, is it worth claiming?
If you are claimed against, yes, because your personal assets are in dispute, the evidence on dates is technical and the periods for responding are short, and because a claim badly answered at the outset conditions everything that follows, including insurance cover. If you are the creditor, it is worth claiming when the debt postdates a cause for dissolution that can be evidenced with the filed accounts, when there are signs of a de facto closure with disappearance of assets or when the director has known assets. It is not worth it when the debt clearly predates the losses, when the director left and registered his departure before the debt arose, or when his assets are as non-existent as the company’s, because then you will win a judgment you cannot enforce.