Unpaid: what to claim and to whom

Amounts that can be claimed

Principal. You can claim the principal, which consists exclusively of the monetary amount established in the invoice, and cannot be modified. In sales, the price must be determined or determinable. For example, in a supply of materials with a price subject to market variations, the contract must have established the way to set the price, and it must have been fixed at the time of delivery of the material.

Interests. You can also claim interest for the delay in payment. These accrue automatically from the moment the payment is missed, without the need for any notice or requirement to the debtor. without the need for any notice or requirement to the debtor. Expenses.

Expenses. Compensation for damages.

Along with these concepts, you can also claim any other damage arising from the breach that you can prove. Along with these concepts, you may also claim any other damages resulting from the breach that can be proven. Loss of profit is more difficult to claim: its amount and its causal relationship with the breach must be proven (that is, the profit not received directly and effectively derives from the unpaid bill).

• For example, if the lack of collection forces you to delay a payment or request additional financing from your bank, you may claim the penalty that your creditor may have applied, or the interest and fees resulting from that additional financing, as actual damages, but always being able to demonstrate a direct relationship between these expenses and the unpaid amount.

• Loss of profit is more difficult to claim: its amount and its causal relationship with the breach must be proven (that is, that the foregone benefit derives directly and effectively from the unpaid amount.). In practice, it is easier to prove lost profits if the defaulting party is the supplier. For example, if the supplier fails to deliver goods, the customer could claim lost profits by proving that it was impossible to obtain them from another supplier and that, furthermore, they were going to sell them within a specific period and at a certain price.

Who can claim?

Creditor. Logically, the claim can be made against the individual or legal entity in favor of whom the delivery or service that has remained unpaid was performed:

• Individuals are liable for their debts with all their assets (both business and personal). And if they are initially insolvent, they will be liable in the future if they cease to be so.

• Legal entities (SA or SL) are only liable for debts up to the extent of the corporate assets, with the partners' assets being protected. However, there are cases in which the directors are also liable.

• If your debtor is a civil partnership, the partners are liable in an unlimited manner, but subsidiary to the resources of the partnership. For these purposes, it is advisable to also sue the partners. If you do not know their identity, you can request the judge, through "preliminary proceedings," to have the managing partner of the civil partnership provide the identity of the partners.

Guarantors. Although it is not common to have guarantors in commercial debts, if there are any, you can also claim payment from them. However:

• Guarantors have the benefits of exclusion (their liability is subsidiary and they can only be held liable when the main debtor is insolvent) and division (so that, if there are more than two guarantors, each of them is only liable for their proportional share).

• For this reason, when negotiating a guarantee, specify that the guarantor or guarantors are jointly liable and waive these rights.

Directors. Directors of SA or SL companies may be held liable for the debts of these companies if they have not acted as a "prudent merchant." By reviewing the accounts of the debtor company and its entries in the Registry, you may find a scenario that allows you to also claim the debt from them:

• If there are losses, you may be able to sue the director. Specifically, if these losses have reduced the corporate assets below half of the share capital and there is no evidence that any measures have been taken to regularize the situation (an increase or reduction of capital, the dissolution of the company...), you may also claim payment from the director, provided that the debt is incurred after the occurrence of the irregular accounting situation.

• If losses have not reduced the equity below half of the capital, but have fallen below two-thirds of it, and one fiscal year has already passed without this situation being recovered and without the administrator having taken any action, they may also request to be held responsible. However, in this case, they must demonstrate the direct relationship between the administrator's negligent actions and the default on their debt.

• The fact that the annual accounts have not been filed with the Mercantile Registry is not, by itself, a scenario that allows for a claim against the administrator. However, if there are other pieces of evidence (such as non-payment, closed facilities, unclear business operations...), they can all be used together to demonstrate the malicious or negligent actions of the administrators and to also file a lawsuit against them.

• If the company has disappeared "de facto", without being orderly liquidated, they may also file a lawsuit and demand accountability from the administrators.

Piercing the corporate veil. It may also happen that the debtor has "vanished", or has left the company inactive and insolvent without liquidating it. In that case, investigate if they have started operations with another company; if so, also sue the new company, proving that there is a connection or identity between both entities and that the new one was established as a "disguise" of the former, with the intention of avoiding responsibilities assumed by the latter. For example, there will be signs of continuity between both companies if the second one was established around the time the first one began to accumulate unpaid debts, if they have a similar corporate purpose, if they have common partners or administrators, if their addresses coincide, or if at any point your debtor requested an invoice from this new company or delivered goods to its premises.