CABO VERDE Law and Practice Contributed by: Nelson Raposo Bernardo, Joana Andrade Correia, Júlio Martins Júnior and Manuel Esteves Albuquerque, Raposo Bernardo & Associados
Civil Liability Towards Creditors The civil liability of the board of directors towards creditors arises from the culpable non- compliance with legal or contractual provisions intended to protect them, and the social assets become insufficient to satisfy the respective credits. The protection of corporate creditors is rein - forced, as the compensation obligation cannot be excluded by the company’s resignation or transaction or by the fact or omission based on a resolution of the general meeting. Creditors’ rights may even be exercised during the insolvency process by the administration of the insolvent estate. Civil Liability Towards Shareholders and Third Parties Finally, the Companies Code establishes a civil liability regime for the management body towards partners and third parties for damages directly caused to them in the exercise of their functions. This regime is complemented by the provisions of the Civil Code, which reinforces liability based on breach of contractual and legal duties. The responsibility of the members of the man - agement body towards shareholders and third parties is joint and several. It is important to highlight that the civil liability regime for members of the management body also applies to “other people entrusted with management functions” . In other words, it does not only apply to members of the management body formally designated by the partners. It applies to directors and managers and not just in formal terms.
shall act also taking into account, to a certain extent, the interests of the shareholders, credi - tors and employees of the company. 4.8 Consequences and Enforcement of Breach of Directors’ Duties The Companies Code organises the topic of directors’ civil liability into three large groups: • civil liability towards company (Articles 78 and 79 of the CSC); • civil liability for social creditors (Article 84 of the CSC); and • civil liability towards partners and third parties (Article 85 of the CSC). Civil Responsibility Towards the Company Article 79, paragraph 1 establishes the principle that the members of the management body are answerable to the company for damages caused to it by breach of legal and contractual duties. A presumption of guilt is attributed to the members of the management body, which may be revoked “if they prove that they acted without fault” . Responsibility is joint among directors. The operationalisation of the civil liability mecha - nism of the members of the management body towards the company depends on the delibera - tion of the shareholders, taken by an absolute majority, and must be proposed within a period of six months counting from said deliberation, and for the exercise of the right of compensa - tion, the partners may appoint special repre - sentatives. The civil liability of administrators can even be triggered during the meeting that considers the financial statements, although this matter is not included in the notice.
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