When a company director in Spain pays the company's debts out of their own pocket: the two-month rule and the courts in 2026

The company that runs a restaurant in Costa Adeje draws up its accounts in March, and the balance sheet says what its director already suspected: two bad seasons have eaten the capital. She keeps the restaurant open, goes on ordering from the same suppliers and waits for a good summer. That decision, and not the losses, is what can cost her her own savings. A limited company limits what its shareholders can lose. It does not shield the person who runs it: Spanish law gives a director two months to react when the company's equity falls below a line, and makes the director who lets them pass the personal guarantor of the debts the company takes on from then on. This note explains that rule as the Supreme Court has applied it up to September 2026, the steps that stop the clock, and the other routes by which a creditor, an insolvency court or the Tax Agency can reach a director's own assets.

Limited liability is for the shareholder

The shareholders of an SL risk what they put in. The director is held to another standard. The office must be performed con la diligencia de un ordenado empresario, with the diligence of an orderly businessperson (Companies Act, article 225), and directors answer to the company, to its shareholders and to its creditors del daño que causen por actos u omisiones contrarios a la ley o a los estatutos o por los realizados incumpliendo los deberes inherentes al desempeño del cargo, for the damage they cause by acts or omissions contrary to the law or the bylaws, or done in breach of the duties of the office, where there has been intent or fault (article 236). Fault is presumed, unless the contrary is proved, when the act is contrary to the law or the bylaws, and it is no defence that the shareholders' meeting approved it.

A business decision that turns out badly is not in itself a breach. The Act protects business judgement: the standard is met when the director acted in good faith, without a personal interest in the matter, with sufficient information and following a proper decision-making procedure (article 226).

Most directors who end up paying, though, do not lose a case about a bad decision. They lose one about dates.

Half the capital, and two months

A company must be dissolved, among other causes, Por pérdidas que dejen reducido el patrimonio neto a una cantidad inferior a la mitad del capital social, because of losses that leave its net equity below half of the share capital, unless the capital is increased or reduced enough, and provided that the proper step is not an application for insolvency (article 363). With a capital of 3,000 euros the line is at 1,500 euros of equity. A company formed with the one-euro capital that the law has allowed since 2022, described in our note on setting up an SL, crosses it with its first losses.

From that moment a clock runs: los administradores deberán convocar la junta general en el plazo de dos meses para que adopte el acuerdo de disolución, the directors must call the general meeting within two months so that it adopts the resolution to dissolve (article 365). The meeting can dissolve the company or, if the item is on the agenda, adopt whatever removes the cause; in practice, more capital, less capital or contributions from the shareholders. If the meeting cannot be held, or its resolution is against dissolution or is not adopted, the directors have two months to ask the court to dissolve the company (article 366).

The price of doing nothing is in the next article. The directors who let those periods pass responderán solidariamente de las obligaciones sociales posteriores al acaecimiento de la causa de disolución, shall answer jointly and severally for the company's obligations that arise after the cause of dissolution (article 367). The Supreme Court describes what the rule does to them: it turns them into garantes personales y solidarios de las obligaciones de la sociedad posteriores a la fecha de concurrencia de la causa de disolución, personal and joint guarantors of the company's obligations after the date on which the cause of dissolution arose (judgment 1512/2023, of 31 October 2023). The Court sets this liability apart from the actions for damages: it is a liability imposed by law for someone else's debt, and what the creditor claims is the debt itself.

When does the clock start? The Court counts the two months from the moment the directors knew of the cause of dissolution, or should have known of it with the diligence of their office (judgment 1477/2026, of 22 September 2026). It also recalls that directors have una obligación de atención ininterrumpida a la evolución patrimonial y financiera de la sociedad, an obligation of uninterrupted attention to the evolution of the company's assets and finances: as a rule the losses become known when the financial year closes, but with today's accounting systems the position can be known at any moment (judgment 1439/2026, of 17 September 2026).

Which debts: those born afterwards

The director guarantees the obligations that arise after the cause of dissolution, and the Act helps the creditor with a presumption: the debts claimed in court se presumirán de fecha posterior al acaecimiento de la causa de disolución, shall be presumed to be later than the cause of dissolution, unless the contrary is proved (article 367). Four points decide most cases. The Supreme Court has ruled on each of them in judgments that we have read in full.

• A debt is born when it is contracted, not when it falls due. Promissory notes issued in September and November 2019 and payable in November and December were debts of the day of issue (judgment 1439/2026). Unpaid wages are born month by month, and the compensation for an unfair dismissal when the labour court makes its order on the failure to reinstate (judgment 217/2024, of 20 February 2024).
• The creditor proves the cause of dissolution; the presumption only dates the debt. In the Court's words, es el acreedor que ejercita esta acción de responsabilidad quien debe probar la concurrencia de la causa de disolución y desde cuándo concurre, it is the creditor who brings this action who must prove that the cause of dissolution exists, and since when. In the case of September 2026 a company with a capital of 6,000 euros had opened 2019 with an equity of 169,271.97 euros and closed it 3,679 euros below zero; the debts, 20,346.84 euros, were of September and November of that year. The Court refused to presume that the cause already existed in September, and the director paid nothing (judgment 1439/2026).
• A director who arrives later answers from the day of acceptance. A new director has a new period of two months and answers for the debts born while in office, pero no a las anteriores a su nombramiento ni a las posteriores a su cese, but not for those before the appointment or after leaving. A sole director appointed in March 2012 did not have to pay invoices of 2011 (judgment 323/2026, of 26 February 2026). The Act has said so in terms since 2022.
• Interest travels with the debt. The guarantee se extiende al principal y a los intereses, extends to the principal and to the interest, the late-payment interest of commercial transactions included (judgment 3/2026, of 8 January 2026).

Putting the money back late does not erase the past

In May 2016 a company sold a shop in Santanyí, Mallorca, for 200,000 euros and collected 42,000 euros more as VAT, which under the reverse-charge rule was not its to collect. It did not return the money. Its equity had been negative since 2015. Once the buyer had sued, the shareholders reclassified a balance of 250,000 euros in their current account with the company as shareholders' contributions; the document reached the tax office in January 2020, and with it the cause of dissolution disappeared. The provincial court let the two directors go, because they had reacted within two months of learning of the claim. The Supreme Court reversed that decision on 22 September 2026: directors who act late dejarán de responder de nuevas obligaciones, pero continuarán respondiendo solidariamente con la sociedad de las obligaciones nacidas con anterioridad, will stop answering for new obligations, but will go on answering jointly with the company for the obligations born before. What counts is when the directors knew of the cause of dissolution, not when they learned of the debt (judgment 1477/2026).

How long a creditor has

The Act gives four years to the actions for damages against directors, the company's own and the individual one: such an action prescribirá a los cuatro años a contar desde el día en que hubiera podido ejercitarse, is time-barred four years from the day on which it could have been brought (article 241 bis). That is not the clock of the claim for the company's debts. Because the director is a guarantor, the claim has el mismo plazo de prescripción que tiene la obligación garantizada, the same limitation period as the guaranteed obligation; it starts on the same day, and what interrupts it against the company interrupts it against the director (judgment 1512/2023). For an ordinary invoice that means five years (Civil Code, article 1964), interrupted by each claim made against the company.

A case decided on 27 May 2026 shows how far that reaches. The invoices were of 2015. The supplier first claimed against the company, beginning with the payment-order procedure that our note on recovering an unpaid debt describes, and obtained judgment in February 2021. The claim it filed against the sole director in March 2022 was in time, and she was ordered to pay 17,161.24 euros, the debt and the costs of claiming it. The company had filed no accounts since those of 2009, and the trial court took that silence, and the lack of any evidence about the company's situation, as proof that the cause of dissolution was older than the debts (judgment 803/2026).

Acting in time

• Look at the balance every quarter. The duty of attention is continuous. A director who keeps quarterly trial balances can show when the equity fell below the line; one who does not may see the date presumed against them.
• Call the meeting within two months, and leave proof of the date. In the Santanyí case the date that counted against third parties was the day the document recording the meeting reached a public office, not the date written on it.
• If the company cannot pay its debts as they fall due, the route is insolvency. The debtor must apply dentro de los dos meses siguientes a la fecha en que hubiera conocido o debido conocer el estado de insolvencia actual, within two months of the date on which it knew or should have known of its actual insolvency (Insolvency Act, article 5), and actual insolvency is the state of el deudor que no puede cumplir regularmente sus obligaciones exigibles, the debtor who cannot regularly meet its due obligations (article 2). Companies that employed on average fewer than ten people in the previous year and have a turnover under 700,000 euros or liabilities under 350,000 euros use the special procedure for micro-enterprises, with the same two months (articles 685 and 686).
• A notice to the court also stops the liability. Directors are not liable for the later debts if within the two months they hubieran comunicado al juzgado la existencia de negociaciones con los acreedores para alcanzar un plan de reestructuración o hubieran solicitado la declaración de concurso de la sociedad, had notified the court of negotiations with the creditors to reach a restructuring plan or had applied for the company to be declared insolvent (article 367). If no plan is reached, the two months run again from the day the notice ceases to have effect.
• Resigning is not an exit. A director answers for the debts born while in office even if they fall due after the resignation (judgment 1477/2026).

The other routes to a director's assets

The individual action asks for more proof: the damage, the director's fault and the link between the two. In the case of May 2026 the trial court that upheld the claim for the company's debts dismissed the individual action, because the supplier had not shown that the failure to file the accounts caused its loss.

Insolvency brings its own judgment on the directors. The insolvency is classified as culpable when intent or gross negligence of the directors caused or worsened it, and it is presumed culpable, unless the contrary is proved, when they Hubieran incumplido el deber de solicitar la declaración del concurso, failed in the duty to apply for the declaration of insolvency, or when in any of the three preceding financial years the accounts were not drawn up, not audited when an audit was due or, once approved, not filed at the Mercantile Registry (Insolvency Act, articles 442 and 444). The judgment disqualifies the persons affected para administrar los bienes ajenos durante un período de dos a quince años, from administering other people's assets for a period of two to fifteen years, and when the company goes into liquidation the judge may order them a la cobertura, total o parcial, del déficit, to cover the deficit in whole or in part, to the extent that their conduct caused or worsened the insolvency (articles 455 and 456). It reaches those who were directors in the two years before the insolvency was declared.

None of this depends on the name at the registry. The Act extends the liability to de facto directors: la persona que en la realidad del tráfico desempeñe sin título, con un título nulo o extinguido, o con otro título, las funciones propias de administrador, the person who in practice performs a director's functions without a title, with a void or expired title or under another title, and also the person on whose instructions the company's directors act (article 236). The owner who runs a Canarian company from abroad through a local director can be inside that definition, and the registered director remains a director for every purpose.

The Tax Agency does not need a court. The General Tax Act makes subsidiarily liable for a company's tax debts, among others, Los administradores de hecho o de derecho de aquellas personas jurídicas que hayan cesado en sus actividades, the de facto or de jure directors of legal persons that have ceased their activities, for the tax obligations pending at that moment, when they did not do what was needed to pay them (article 43), and the Agency declares that liability itself, by an administrative act, after hearing the director (article 41). That procedure has its own rules and its own deadlines, and it deserves a note of its own.

Two things are often confused with all of the above. A personal guarantee signed at the bank is a contract: the director pays as guarantor whatever the company's balance sheet says, and when that debt cannot be paid the remedy is the individual's own, the one explained in our note on second chance and debt relief in Spain. And a directors' liability policy does not cover everything: under the Insurance Contract Act the insurer pays salvo en el supuesto de que el siniestro haya sido causado por mala fe del asegurado, except where the loss was caused by the bad faith of the insured (article 19), and the rest depends on the wording of each policy.

What our insolvency and commercial teams do

Our insolvency practice reviews a company's viability before decisions are made, prepares restructuring plans and company insolvency filings, and deals with a director's liability when the filing is late; our commercial practice recovers debts from invoices to enforcement. Both are described on our insolvency and commercial law pages, and you can write to us with the last balance sheet and the date of the last general meeting.

Common questions

My SL has lost more than half its capital. Am I already liable?

Not for that alone. The liability reaches the debts born after the cause of dissolution if two months pass without the general meeting being called, or without an insolvency application or a notice of negotiations to the court. The two months run from when you knew of the losses or should have known.

I resigned as director last year. Can a creditor still claim against me?

For the debts born while you were in office and after the cause of dissolution, yes, for as long as the debt itself can be claimed. Not for those born after you left.

I took over a company that was already in trouble. Do I inherit the old debts?

No. A new director has two months from accepting the office and answers for the debts born from then on, not for the earlier ones, as the Supreme Court repeated in February 2026.

We put money into the company and the equity is positive again. Is that the end of it?

For the debts born from that day, yes. For those born while the company was in a cause of dissolution and the two months had passed, no: the Supreme Court said so in September 2026.

How long does a creditor have to sue me?

For the company's debts, as long as it has against the company: five years for an ordinary invoice, interrupted by each claim made against the company. For an action for damages, four years from the day it could be brought.

General information on the law as it stands in October 2026 (texto refundido de la Ley de Sociedades de Capital, articles 4, 225, 226, 236 to 241 bis and 363 to 367; texto refundido de la Ley Concursal, articles 2, 5, 442 to 444, 455, 456, 685 and 686; Ley General Tributaria, articles 41 and 43; Ley de Contrato de Seguro, article 19; Civil Code, article 1964; the Supreme Court's judgments 1512/2023, 217/2024, 3/2026, 323/2026, 803/2026, 1439/2026 and 1477/2026, read in full). It is not advice on a particular company: whether a cause of dissolution exists, since when, and which debts fall after it depend on the balance sheets and on the dates of each debt.