Not every form of compensation provided for in a shareholders’ agreement (pacto de socios) constitutes an enforceable debt. And not every failed venture entitles a party to shift onto the director the cost of economic expectations that never accrued.
Judgment of the Supreme Court (Sentencia del Tribunal Supremo) No. 799/2026, dated 27 May, Roj STS 2333/2026 (ECLI:ES:TS:2026:2333), offers a particularly instructive lesson for startups, closely held companies (sociedades cerradas) and disputes among founding shareholders. It is also of considerable relevance to those who draft shareholders’ agreements, articles of association (estatutos) and claims for director liability.
The case arose in a technology company incorporated by several founders. Certain shareholders undertook ancillary obligations (prestaciones accesorias) linked to their professional dedication to the venture, in particular technical management, development and operational functions. The articles of association provided for such obligations but did not establish any specific statutory remuneration in respect thereof. In parallel, the shareholders entered into a shareholders’ agreement (pacto parasocial) that did contemplate certain economic entitlements for the work performed, albeit under a formula contingent upon the company’s financial performance.
This was the critical point. The compensation envisaged under the agreement did not operate as immediate, liquid and unconditional remuneration. Payment was contingent upon future capital increases, the admission of new shareholders and the generation of sufficient cash flow to meet those obligations. In practice, the founders had agreed upon an economic expectation tied to the success of the venture’s future financing.
But the financing never materialised. The agreed capital increase was not subscribed, the company was ultimately dissolved and two shareholders brought a claim against the director for the amounts they considered due for their services. The cause of action chosen was the individual liability action (acción individual de responsabilidad) under Article 241 of the Spanish Companies Act (Ley de Sociedades de Capital), grounded on the direct loss which, in their view, had been caused by the failure to pay them for the services rendered.
The Provincial Court (Audiencia Provincial) partially upheld the claim and ordered the director to pay EUR 50,000 to each claimant. The Supreme Court, however, set aside that award. It did so on two distinct grounds that merit separate analysis: the substantive corporate law ground and the procedural ground.
From a substantive standpoint, the judgment recalls that ancillary obligations (prestaciones accesorias) may be gratuitous or remunerated, but their regime must be properly structured. Articles 86 and 87 of the Spanish Companies Act (Ley de Sociedades de Capital) require the articles of association to set out the specific content of the obligation and to state whether it is to be performed gratuitously or in exchange for remuneration. Where the obligations are remunerated, the articles of association must specify the corresponding compensation, which may not exceed the value of the performance rendered.
In the case at hand, the Supreme Court did not treat the compensation claimed as a matured debt. It construed the economic entitlement as being conditional upon certain capital increases taking place and upon those increases generating sufficient cash to satisfy it. Since the anticipated capital injection never materialised, the entitlement never accrued. And if it never accrued, no enforceable claim existed on that basis.
This conclusion is decisive for the liability action. The individual action against the director does not serve to convert a frustrated expectation into recoverable loss. For the claim to succeed, it is necessary to identify unlawful conduct (conducta antijurídica) attributable to the governing body, direct harm to the assets of the shareholder or third party, and a causal link between the two. If the compensation was not enforceable, an essential prerequisite is lacking: direct loss (daño directo).
The second ground of the judgment is procedural and carries enormous practical significance. The Provincial Court had based the award on a specific act of misconduct: the director’s failure to execute the capital increase. However, that was not the conduct upon which the claimants had built their case. Neither the statement of claim (demanda) nor the grounds of appeal had identified that as the corporate wrong (ilícito orgánico). Indeed, the appellants’ contention was that their right to payment existed independently of the capital increase.
The Supreme Court accordingly found that the lower court had ruled ultra petita (incongruencia extra petita). The judgment could not hold the director liable on a cause of action (causa de pedir) different from that advanced by the parties in the proceedings. Article 218 of the Civil Procedure Act (Ley de Enjuiciamiento Civil) requires consistency between the claims, the cause of action and the operative part of the judgment (fallo). That requirement is not a mere procedural formality. It is a safeguard underpinned by the right of defence enshrined in Article 24 of the Spanish Constitution. If the basis of the award is altered, so too is the terrain upon which the parties have litigated.
The lesson for corporate practitioners is clear. If the founders’ work is to be remunerated, it is advisable to define with precision who pays, when the entitlement arises, whether it is contingent upon financing rounds, what happens if the capital increase fails and which instrument constitutes the source of the obligation. Articles of association, shareholders’ agreements and service contracts must be coordinated, not layered ambiguously upon one another.
The lesson for litigators is equally direct. A liability claim against directors demands precision in framing the cause of action. It is not sufficient to describe deficient management, a deteriorated corporate relationship or a failed business venture. The corporate wrong (ilícito orgánico), the direct loss and the causal nexus must be clearly articulated. What is not properly placed before the court as part of the procedural debate can hardly sustain a judgment.
Because in corporate law, it is not enough to agree. One must agree well. And, should litigation ensue, one must litigate on precisely what was agreed, what was breached and what caused legally enforceable harm.
