Accepting an appointment as director of a company experiencing financial difficulties can immediately raise an important concern: can a newly appointed director be held personally liable for debts that the company had already incurred before their appointment?

The answer does not depend solely on whether the company has outstanding debts or is facing financial problems.

The Spanish Supreme Court Judgment 323/2026, of 26 February, provides an important clarification on the scope of directors’ liability for company debts under Article 367 of the Spanish Companies Act and confirms a particularly relevant rule where there is a change in the company’s governing body:

A director who takes office when the company is already subject to a statutory ground for dissolution does not, merely by accepting the appointment, become liable for company debts that arose before that appointment.

From the moment the director accepts office, however, their own statutory duties begin to apply. Failure to comply with those duties may result in joint and several liability for certain obligations arising thereafter.

Is a director liable for a company’s debts?

As a general rule, no.

A company has its own legal personality and is liable for its obligations with its own assets. Being a director of a limited liability company or public limited company does not automatically make that person personally liable for all of the company’s debts.

Spanish law nevertheless provides for different types of directors’ liability.

One of them is established in Article 367 of the Spanish Companies Act, which provides for joint and several liability for certain company debts where a statutory or contractual ground for dissolution exists and the director fails to comply with the duties imposed by law in that situation.

Accordingly, an unpaid invoice or a period of financial difficulty does not, by itself, allow a creditor to claim the debt directly from the director.

It is necessary to analyse the company’s circumstances, when the relevant obligation arose, when the ground for dissolution occurred, who was acting as director at the time and what steps were taken.

When can a director become liable for company debts?

Article 367 of the Spanish Companies Act must be read together with the duties that arise when a company becomes subject to a ground for dissolution.

Among those grounds, Article 363 includes losses that reduce the company’s net assets to less than half of its share capital, unless the financial imbalance is sufficiently restored and provided that insolvency proceedings are not required.

The law also provides for other grounds, including cessation of the company’s business activity for more than one year, a manifest impossibility of achieving the corporate purpose or paralysis of the company’s corporate bodies.

Where a statutory or contractual ground for dissolution exists, Article 365 generally requires directors to convene a general meeting within two months so that the shareholders can resolve to dissolve the company or adopt the measures required to remove the ground for dissolution.

The current legislation also contains specific rules for situations involving insolvency proceedings or negotiations with creditors aimed at reaching a restructuring plan.

If directors fail to comply with the relevant statutory duties, the joint and several liability regime under Article 367 may apply.

What did the Supreme Court decide in Judgment 323/2026?

The case considered by the Supreme Court provides a particularly useful example.

A company had purchased construction materials over several months in 2011 and had failed to pay the corresponding invoices.

By the end of that financial year, the company was suffering significant losses: its net assets stood at approximately €277, while its share capital exceeded €24,000.

However, the director against whom the claim was subsequently brought did not take office until March 2012.

The debts that the creditor sought to recover personally from the new director had therefore arisen before she accepted her appointment.

Both the Commercial Court and the Provincial Court had initially held that she should be liable.

The Supreme Court overturned that approach.

A new director does not personally inherit earlier company debts

This is the main conclusion of the judgment.

Where a person takes over the management of a company that was already subject to a ground for dissolution, that person’s statutory duties begin from the moment the appointment is accepted.

However, their liability does not extend backwards.

The Supreme Court confirms that a newly appointed director who fails to take the appropriate steps to address an existing ground for dissolution may be jointly and severally liable for company obligations arising after they assumed office, but not for obligations arising before they accepted their appointment or after they ceased to be a director.

In the case decided by the Court, the debts claimed were incurred before the director’s appointment.

The Supreme Court therefore upheld her appeal and rejected the claim against her under Article 367.

When does the two-month period begin for a newly appointed director?

This point has significant practical importance.

Where the ground for dissolution already existed before a change in directors, the newly appointed director has their own two-month period running from acceptance of the appointment in which to take the steps required by law.

This approach had already been established in earlier Supreme Court case law and was later expressly incorporated into Article 367 of the Spanish Companies Act through Law 16/2022 of 5 September.

The current wording of the provision expressly states that, where a director is appointed after the ground for dissolution has arisen, the relevant period begins from the date on which the appointment is accepted.

Accepting the management of a company in financial difficulty therefore does not automatically mean assuming responsibility for the company’s past.

However, it does trigger obligations that should be assessed immediately.

Which debts can a newly appointed director be liable for?

The relevant dates are essential.

In general, three points in time must be distinguished:

• when the ground for dissolution arose;
• when the new director accepted the appointment; and
• when the obligation claimed by the creditor arose.

Where a director is appointed after the ground for dissolution has arisen, Article 367 limits their potential liability to company obligations arising after acceptance of the appointment.

This means that an obligation that already existed before the director took office does not become that director’s personal debt simply because the company remains unable to satisfy it.

By contrast, obligations arising after the director assumes office may fall within the scope of Article 367 if the ground for dissolution continues to exist and the director fails to comply with the duties imposed by law.

Does the invoice date determine when the debt arose?

Not necessarily.

One of the key issues in litigation concerning directors’ liability is determining when the company’s obligation legally arose.

The date on which a debt becomes payable, is invoiced or is formally claimed should not automatically be confused with the date on which the underlying obligation was incurred.

Depending on the circumstances, it may be necessary to review the contract, the transaction giving rise to the debt and the specific legal relationship between the parties.

This distinction can determine whether a particular debt falls within the period for which a director may potentially be held liable.

Who has to prove when the debt arose?

Article 367.2 contains an important evidential rule.

Unless proved otherwise, obligations whose payment is claimed in court by legitimate creditors are presumed to have arisen after the ground for dissolution or, where the director was appointed later, after acceptance of that appointment.

This is a rebuttable presumption.

As a result, documentation concerning contracts, orders, services, invoices, annual accounts and appointment dates may become essential when determining the actual date on which an obligation arose.

Is a director automatically liable from the moment they accept office?

No.

The moment from which a director’s legal duties begin should not be confused with automatic personal liability.

Accepting office when the company is already subject to a ground for dissolution does not mean that the director immediately becomes personally liable for every new company debt.

Liability under Article 367 is linked to failure to comply with the statutory duties that arise when a ground for dissolution exists.

The date of acceptance is nevertheless particularly important because it marks both the beginning of the period within which the new director must act and the starting point for identifying which company obligations may potentially fall within the scope of their liability.

What should a director do when accepting office in a company with losses?

The judgment has a clear preventive implication.

Before accepting an appointment — and particularly immediately afterwards — it is advisable to understand the company’s actual financial position and determine whether any statutory or contractual ground for dissolution exists.

If such a ground exists, the director should promptly assess which measures are legally required.

Depending on the circumstances, it may be necessary to convene a general meeting to resolve on the company’s dissolution or adopt measures to remove the relevant ground.

If the company is in a situation falling within insolvency or pre-insolvency law, restructuring or insolvency options must also be considered.

The current wording of Article 365 expressly addresses the effects of filing for insolvency proceedings or notifying the court of negotiations with creditors aimed at reaching a restructuring plan.

The key point is to avoid inactivity once directors know, or ought to know, the company’s financial and corporate situation.

Can a creditor claim directly against a director?

A creditor may do so where the legal requirements for one of the statutory directors’ liability actions are satisfied.

However, the mere fact that a company has failed to pay a debt is not sufficient to make its director personally liable.

In a claim specifically based on Article 367, it will normally be necessary to analyse, among other matters:

• whether a ground for dissolution existed;
• whether the director failed to comply with the duties arising from that situation;
• and when the obligation whose payment is being claimed arose.

Liability under Article 367 should also not be confused with other directors’ liability claims available under the Spanish Companies Act, which are based on different legal requirements.

What happens when the director ceases to hold office?

Supreme Court Judgment 323/2026 also clarifies the other temporal limit.

A director does not become liable under Article 367, merely because they previously held office, for company obligations arising after their cessation as director.

Any potential liability must therefore be assessed in relation to the relevant period during which the person held office and the statutory conditions for liability were satisfied.

Once again, the dates of appointment, acceptance and cessation become particularly important where several directors have succeeded one another.

Accepting office does not automatically mean assuming the company’s past

Supreme Court Judgment 323/2026 confirms an important principle for both directors and creditors.

A person who agrees to manage a company that is already subject to a ground for dissolution does not automatically become personally liable for debts that the company incurred before their appointment.

However, accepting office does not permit the new director to remain inactive.

From that moment onwards, their own statutory duties begin and a new period starts within which they must respond appropriately to the company’s situation.

If they fail to comply with those duties, obligations arising thereafter may fall within the scope of joint and several liability.

For this reason, the decisive question is not simply “did the company have debts?”, but rather to reconstruct the relevant timeline correctly:

• when did the ground for dissolution arise?
• when did each obligation arise?
• when did the director accept the appointment?
• and what measures were taken afterwards?

At Solium Legal, we advise companies, directors, shareholders and creditors on corporate and commercial law matters, including situations of financial distress, directors’ liability and claims arising from company debts.