Dissolution of Companies and Succession: Commentary on Ordinance No. 11411 of 2024

The recent Ordinance No. 11411 of April 29, 2024, issued by the Court of Cassation, offers significant insights into the legal consequences of a company's dissolution from the Companies' Register. In particular, the Court focused on the effect of company extinction and the resulting succession phenomenon, clarifying fundamental aspects concerning the active and passive relationships of the dissolved company.

Regulatory Context and the Judgment

Following the reform of company law introduced by Legislative Decree No. 6 of 2003, the dissolution of a company from the Companies' Register does not automatically lead to the cessation of all legal relationships. According to the Court, a succession phenomenon occurs, whereby the company's obligations are not extinguished but are transferred to the shareholders. This means that shareholders are liable for the debts of the dissolved company to the extent of what they received during liquidation or unlimitedly, depending on their liability.

Dissolution of a company from the Companies' Register - Effects - Extinction of the company - Consequences - Active and passive relationships - Succession phenomenon - Existence - Limits - Factual circumstances. 159388 COMPANIES - OF NATURAL PERSONS (DEFINITION, CHARACTERISTICS, DISTINCTIONS) - IN GENERAL In general. After the reform of company law, implemented by Legislative Decree No. 6 of 2003, if the extinction of a company, whether a partnership or a capital company, resulting from its dissolution from the Companies' Register, does not correspond to the cessation of all legal relationships pertaining to the extinguished company, a succession-type phenomenon occurs, by virtue of which: a) the company's obligation is not extinguished, which would unjustly prejudice the right of the company's creditor, but is transferred to the shareholders, who are liable for it, within the limits of what they received following liquidation or unlimitedly, depending on whether, while the company was ongoing, they were limitedly or unlimitedly liable for the company's debts; b) rights and assets not included in the liquidation balance sheet of the extinguished company are transferred to the shareholders, under a regime of co-ownership or undivided community, excluding mere claims, even if litigated or litigable, and uncertain or illiquid credits, the inclusion of which in said balance sheet would have required further activity (judicial or extrajudicial), the failure to perform which by the liquidator allows the assumption that the company has waived them, in favor of a more rapid conclusion of the dissolution proceedings.

Practical Implications of the Judgment

The Court's decision has significant practical implications for the shareholders of a dissolved company. In particular, the following aspects must be considered:

• The company's obligations are not extinguished upon dissolution but are transferred to the shareholders;
• Shareholders are liable based on their limited or unlimited liability;
• Assets not included in the liquidation balance sheet are transferred to the shareholders under a regime of undivided community;
• Uncertain claims and credits are not transferred to the shareholders unless they were included in the balance sheet.

This judgment underscores the importance of proper management of liquidation procedures and the need for careful planning in case of company dissolution. Indeed, the failure to include certain assets or rights may result in waivers, with direct consequences for the shareholders.

Conclusions

In conclusion, Ordinance No. 11411 of 2024 represents an important clarification regarding company dissolution and the succession phenomenon. It reiterates the need for adequate attention from shareholders in managing their responsibilities, highlighting how the legal consequences of dissolution should not be underestimated. It is essential for legal professionals and entrepreneurs themselves to delve into these aspects to avoid surprises and ensure proper management of their obligations and rights.