Differences between social action and individual responsibility action

 

The liability of a company's administrators can be claimed through different legal channels depending on who is harmed by their actions. The legislation mainly distinguishes between social action of responsibility and individual action of responsibility, two mechanisms that pursue different purposes and protect different interests.

What is social action of responsibility?

Social action of responsibility aims to protect the company's assets against negligent or unlawful actions carried out by the administrators.

In this case, the company itself suffers the damage directly, not a specific partner or third party. Therefore, any compensation that may be obtained will be directed to the company itself.

To initiate this action, a prior agreement of the general meeting of partners is generally required. In addition, the law allows any partner to request the adoption of this agreement, even if the matter is not initially on the agenda.

The approval of social action of responsibility also implies the removal of the affected administrators.

When can minority partners act?

The law also protects minority partners by allowing them to exercise this action in certain cases, especially when the company does not act.

This can happen when:

• Administrators do not convene the requested meeting.

• The company does not file the lawsuit within one month from the agreement.

• The meeting decides not to exercise the action.

Furthermore, when there is a breach of the duty of loyalty, partners can directly exercise social action without the need for a prior agreement of the meeting.

Creditors may also claim against administrators if the company's assets are insufficient to pay their credits and neither the company nor the partners have exercised the action.

What is individual action of responsibility?

Individual action of responsibility occurs when the administrator's conduct directly harms a partner or a third party in their personal assets.

In this case, the damage is not suffered by the company, but by a specific person, who may directly claim the corresponding compensation.

For example, individual action could exist if an administrator unjustifiably prevents a partner from exercising their voting rights or if they hide the real economic situation of the company from a third party to obtain financing.

Difference between direct and indirect damage

The main difference between both actions lies in determining who suffers the direct harm.

Direct damages are considered:

• Not paying approved dividends.

• Preventing assistance or voting at meetings.

• Refusing to register partners in the record book.

• Concealing the economic situation of the company to obtain loans or guarantees.

On the other hand, indirect damages are considered:

• The loss of value of social participations.

• The reduction of debt collection possibilities due to the company's asset deterioration.

In these latter cases, the harm first falls on the company, so a social action of liability would be appropriate.

The difference between social action and individual action of liability depends fundamentally on who has suffered the damage caused by the administrator's actions. If the harm directly affects the company's assets, a social action should be taken. If the damage directly affects a partner or a third party, the individual action of liability can be used.