▷ Administrador unico sociedad limitada

Duties of a company director

To clarify that to be a director of a company you do not necessarily have to be a partner of the company. These are two figures that, although they often coincide when it comes to falling on one person, this is not always the case.

If you do not have a minimum of 25% of the capital stock even if you act as administrator, you can choose to be self-employed or register in the regime assimilated to the high within the general regime of the Social Security.

To be understood, when the figure of the joint administrator of a company is given, taking into account that several hold the position, all of them will be able to represent and sign on behalf of the company indistinctly. That is to say, the signature of one constitutes the will of the company, without the need for all of them to give their tacit approval.

However, if you are a joint administrator, then it will be an indispensable requirement that the representation of the company and the signature is carried out jointly by two or more of the administrators. Otherwise the action will not be valid.

Partner agreement

But great power requires great responsibility and, for this reason, the company is liable before third parties for the acts of the administrator, but the latter is liable for the acts that he/she commits in the performance of his/her duties in which, by error, omission or breach, that is to say, by lack of diligence, he/she causes damage to the shareholders, to the company itself or to third parties.

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Article 225 of the Capital Companies Law establishes that the administrator must act with the “diligence of an orderly businessman”. The following articles attempt, without much success, to qualify the scope of this requirement, by establishing that the director must act with the “diligence of an orderly businessman”:

Some of the important clauses of these shareholders’ agreements are those that make it possible to delimit the scope of action of the administrator and submit some of his decisions to the approval of certain shareholders. In practice, as it is a private document, the administrator can also adopt these decisions, but as he is not complying with the agreement previously signed with his partners, these can immediately demand some responsibilities or even remove him from his position or buy back his shares. Actions that, without the existence of a shareholders’ agreement, would be very difficult to initiate.

Joint venture

There are different ways to manage a limited liability company, but can one be a director of a limited liability company and not be a partner, and who can be a director, what are the obligations of a director, and what are the requirements to be fulfilled?

If you stay here until the end, you will have answers to all these questions, you will know the obligations of a director and you will know what to answer if you are ever offered this responsibility without being a partner of the company.

While the partner is the owner of the company, the director directs and represents the company. Sometimes, the same person can occupy both positions making believe that they are the same, but in truth they are two functions with totally different responsibilities.

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Unless the bylaws determine otherwise, the position of director shall not be remunerated. Otherwise, the amount of his remuneration must be fixed on the basis of specific references.

The functions of the administrators are usually regulated in the bylaws or through shareholders’ agreements in which their functions and the manner of exercising their position, as well as their duties and responsibilities, are delimited.

What are the responsibilities of a director?

The main responsibility of a director is to perform his duties in the best interests of the company. This implies that he/she should not rely on his/her personal interests but on the interests of the company, that he/she should be loyal to the company and that he/she should be diligent. He/she must also keep confidential information of the company secret, both during his/her term of office and after leaving office, if any.

If nothing is said in the statutes, he will not receive economic remuneration for the mere fact of being the administrator. It is convenient to remunerate him and also to fix his remuneration or the criteria to fix it, in the own statutes so that the tax authorities consider it as a tax-deductible expense.

Article 225 of the Capital Companies Law establishes that the administrator must be managed with the “diligence of an orderly businessman”. This means that he will act in good faith, loyal to the company, without conflicts of interest, in an independent manner and that he will maintain confidentiality on the information gathered during his position. However, in order for the liability of directors to really apply, it must be possible to prove that the director is at fault and that he acted in bad faith or committed an unlawful act.