The legislator, when reforming the company law implemented by Decree-Law No. 6 of 17 January 2023, took into account the unsatisfied creditors of the cancelled company and made a provision accordingly. However, the issue of collecting the company's claims was overlooked.
This loophole has now been remedied by the case law of the Court of Cassation, which was based on the following facts:
Two equal partners of a limited liability company, which had been deleted from the commercial register ex officio due to the non-submission of annual accounts, served two enforcement notices on the bank on the basis of a judgment of the Court of Appeal, which had ordered a bank to pay a sum of money in favor of the said company.
The bank brought two anti-enforcement actions, but they were dismissed. Finally, the matter was decided by the Court of Cassation.
In this context, it was pointed out that the deletion of the company from the commercial register, be it a partnership or a corporation, does not entail the disappearance of all legal relationships, but rather causes a legal succession through which the legal obligations of the company do not expire, but are transferred to the partners.
Thus, even surviving assets that are not accounted for can pass to the partners of the dissolved company.
This succession does not depend on the settlement of the litigation on the claim, because if this litigation is interrupted due to the dissolution of the company, the partners have the possibility to continue or resume the litigation as legal successors of the company according to the Italian Code of Civil Procedure.
In this direction, the Court of Cassation confirms that the mere failure to file the balance sheet during the liquidation does not constitute a presumption of waiver of the claim, just as the uncertainty due to the pendency of the litigation does not preclude the succession of the partners to the company's claim.
A German court would come to a different conclusion, if after the deletion of a company in the commercial register it turns out that there are still receivables of the company, a so-called supplementary liquidation is required.