Case: the responsibility of «J & J SC» and its partners –

By Jesús Alfaro Águila-Actual

The next case is extracted from the judgment of the Provincial Courtroom of Pontevedra of November 27, 2020

The information

The corporate was included with a capital of two,000 euros, contributed in equal elements by two companions at 50%: Mrs. Juana and Mr. José, joint directors of the corporate. The corporate was established to function a bar-cafeteria enterprise. The corporate intervened within the visitors concluding acts and contracts, as is a consensual reality, based on the allegations of the events.

The dispute issues the contractual legal responsibility of a civil society whose function was to hold out business operations. The peculiarity of the case lies in the truth that the lawsuit, -initially filed by way of the order for cost process, later reworked right into a verbal trial-, was directed each in opposition to the corporate, (J & J SC), and in opposition to its two founding companions, (Doña Juana and Don José). Each the corporate and Mr. José had been declared in procedural absentia, attributable to their voluntary failure to seem within the course of.

The unfulfilled contractual relationship consisted of what the plaintiff entity (LPH, SA) referred to as a “rebate contract”, formalized in writing on 8.5.2014. The contract responded to the standard operation of sure provides to the resort business, consisting of the provision of espresso to the bar operated by the defendants; In essence, a minimal provide of espresso was agreed, (additionally of different complementary merchandise), in the course of the interval of the contract, (three and a half years) at a sure value, (15.99 euros / kilo), and anticipated a one-time “rebate” or low cost that the provider made on the overall value of the contract by delivering a money sum upfront. The client’s obligations had been subsequently ensured with the advance cost by the provider of 4,000 euros, and with the supply of a penal clause for non-compliance, consisting of an indemnity of three.33 euros per kilo of espresso that had not been consumed. . In utility of this stipulation, the plaintiff claimed the sum of three,729.05 euros, an quantity that consisted of two objects: a) the quantity of compensation for non-compliance, within the quantity of three,436.56 euros; and b) the sum of 292.49 euros for the non-payment of an bill, (together with return prices), for the provision of sure merchandise, dated 6.5.2014, previous to the date of conclusion of the contract.

As said, neither the defendant firm, nor the accomplice Mr. José answered the lawsuit. The litigation adopted an eventful course of, with fixed requests for evaluate of the ordination proceedings issued by the Lawyer of the Administration of Justice, (LAJ, hereinafter); the confusion to a big extent got here from the plaintiff’s personal conduct, which had directed its request for monitoring in opposition to civil society and pure individuals in an imprecise method, with the next point out: “… declare for cost… in opposition to Don José and Doña Juana, performing on behalf of the corporate J & J SC ”, a point out that was repeated within the petition. On this method, the doubt may come up as as to whether the declare was directed in opposition to the corporate, represented by its two joint directors, in opposition to the pure individuals, who acted in visitors as an irregular firm, or in opposition to the three talked about.

The courtroom initially required cost from civil society, however on the request of the plaintiff, as soon as the request was unsuccessful, the 2 people had been required to pay. On 11.29.2017, after sure domiciliary investigation procedures, the cost request was agreed once more, this time within the following phrases: “require the debtor social gathering, J & J SC, within the members of the identical …”

Ms. Juana appeared on the proceedings and submitted a written request for its annulment. The letter gave an account of the notification that had been made to Ms. Juana of a set of resolutions of heterogeneous content material, amongst which supposedly there was no decree of admission to processing of the cost order with the corresponding cost request. The showing social gathering complained in regards to the imprecision of the courtroom’s selections, during which it was not clear whether or not the declare was being introduced in opposition to society or in opposition to Ms. Juana on her personal behalf. The transient continued, within the various, exhibiting opposition to the request for cost of cost on the premise of the allegation of the dearth of legitimacy of Ms. Juana … (and including that) .. couldn’t be held accountable por having ceased to be a member earlier than the breach of the obligations claimed.

As soon as the order for cost course of concluded … Juana’s illustration requested clarification of the LAJ decree, reproducing the doubt in regards to the precise willpower of passive legitimation. This petition was rejected, but it surely prompted a brand new LAJ diligence, dated March 27, 2018, which verbatim states that “the events to the continuing are Lorenzo Pato Hermanos, SA, and the entity J & J, SC”, and it’s added: “the request to the defendant was made by way of their authorized representatives …” Regardless of the brand new protest of the showing social gathering in relation to the precise subjective willpower of the dispute, the LAJ once more issued a decree agreeing that the method proceed its processing by way of the oral trial channel, conferring switch to the plaintiff to be able to oppose the problem. The content material of the opposition letter confirmed that the actor was directing the lawsuit each in opposition to the corporate and in opposition to its two companions

Questions in regards to the lawsuit

  1. Towards whom ought to LPH SA file the lawsuit?
  2. By way of what process ought to this declare be processed?
  3. Is Juana passively legitimized?
  4. Is J & J SC passively legitimized?
  5. Does J & J SC have authorized persona?
  6. What guidelines of Firm Legislation needs to be utilized to J & J civil society?
  7. Does Juana reply to the money owed of civil society which are claimed within the lawsuit even supposing she had “left” the corporate earlier than the default? Is Juana a debtor? Is the accountability as administrator and accomplice totally different?
  8. What results does the sale by Mrs. Juana of her shares to Mr. José have on the corporate? What if Juana had bought her shares to Manuela, Juan’s second spouse?
  9. Ought to the demand be estimated? Who and what may the trial decide convict?
  10. What’s Juana’s strongest argument to keep away from being sentenced to compensate LPH SA for the damages derived from the breach by J & J of the rappel contract?

Questions in regards to the rappel contract

  1. Describe the contract during which the “rebate” is inserted. What’s the authorized nature? Point out that are the primary obligations assumed by LPH SA and J & J SC.
  2. What’s the financial rationale for a “rappel” pact with that content material? Specifically, clarify the “advance”
  3. Study the contract from the attitude of Competitors Legislation. Is it a restrictive settlement on competitors? What content material of it’s restrictive? Is it opposite to artwork. 1 of the Competitors Legislation?
  4. Is the contract usurious?

Picture: from the collection Cuba de Jordi Valls Capell

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