Crime of patrimonial infidelity: also partners can file the lawsuit
| Insights
The Court of Cassation recently reiterated – in line with prevailing precedents – that the standing to file a lawsuit for the crime of patrimonial infidelity, pursuant to art. 2634 c.c., belongs not only to the company, as a whole, but also, severally, to every single partner (Court of Cassation, section V, sent. n. 57077/2018).
The partner is indeed the person offended by the crime, and not only damaged by it, as the conduct of the disloyal director is directed not only to compromise the company’s interests, but also, mainly, those of the company’s partners or shareholders, since they suffer the depletion of their assets due to the disloyal activity of the director.
Therefore, when the company – as in this case – is sold by the director at an incongruous price, with consequent pecuniary damage for the administered company and concurrent advantage for the acquiring company (where the same director also holds a shareholding), the partners of the former can file a lawsuit for the crime of patrimonial infidelity, in accordance with art. 2634 of the Civil Code, which punishes the directors, chief managers and liquidators, who, having an interest which conflicts with that of the company, and seeking to secure for themselves or others an unlawful profit or any other advantage, commit or contribute to commit any act causing intentional prejudice to the company.
The Court, in the said ruling, has fully rejected the defensive thesis of the defendant, who was the sole director of the company at the time of the facts, on the assumption that not only he had kept silent, to minority shareholders, the existence of a situation of conflict of interest – given by his dual role as director and majority shareholder of the transferring company, and 35% shareholder in the company that controlled the buyer – but he had also sold the company in question at an incongruous and too modest price, compared with other offers received.
The Judges have found that the circumstance that the need to sell the company was well known and shared by the minority shareholders held no significance, given that the censored conduct did not pertain to the rebalancing operation itself, implemented through the transfer of the company, but to the definition of an incongruous price of sale to a buyer with which the defendant was, at the time, co-interested.