Responsabilidad de los administradores societarios por pérdida del capital en el derecho argentino

MARTIN E. ABDALA

Revista de Derecho de la Universidad del Norte

Ediciones Uninorte

Lugar: Barranquilla, Colombia; Año: 2010

0121-8697

Often we can see in Argentina companies operating without an adequate supply of capital and doing business in excess of the real possibilities of the firm. When there are situations of breach of obligations of the company, creditors injured trying to compensate their losses by bringing tort actions against the administrators. To justify these claims a group of Argentine authors intend to use the arts. 59, 274 and 99 of the Ley de Sociedades Comerciales (Corporations Law). We do not consider appropriate to use for this purpose the art. 99 of the Ley de Sociedades Comerciales. On the one hand, it is extremely difficult to determine when a society has lost its social capital and, second, and this is the most important, because in all cases thea application of this rule presupposes that the cause of dissolution has been declaredand not only that it occurred. On the other hand we do not consider appropriate, without ignoring the importance of the arts. 59 and 274 of the Ley de Sociedades Comerciales used as a kind of general clause which can be called to justify allegations of liability that otherwise would not find a clear spot or justification in our legal system. The solution to the problem is found in civil law. In the preparatory stage of any contract, the corporate manager is personally obligated to report certain matters relating to the solvency of the company, such as the amount and existence of capital and if not, can be held liable for damages for culpa in contrahendo.