{"id":964,"date":"2022-10-26T16:51:38","date_gmt":"2022-10-26T14:51:38","guid":{"rendered":"https:\/\/www.lexcapital.it\/la-prescrizione-dellazione-di-responsabilita-verso-gli-organi-sociali-da-parte-dei-legittimi-portatori-di-interesse\/"},"modified":"2026-06-08T17:40:01","modified_gmt":"2026-06-08T15:40:01","slug":"statute-of-limitations-for-liability-actions-against-corporate-bodies","status":"publish","type":"post","link":"https:\/\/www.lexcapital.it\/en\/statute-of-limitations-for-liability-actions-against-corporate-bodies\/","title":{"rendered":"Statute of limitations on liability actions against corporate bodies by legitimate stakeholders"},"content":{"rendered":"\n
\n\t\t\t\t\"Prescrizione-azione-di-responsabilita-1080x673.jpg\"\n\t<\/figure>\n\tEdited by:<\/b> Dr. Francesca Bichiri, Research Fellow, Department of Law, UniTo.\nAny discussion regarding the statute of limitations in corporate law must necessarily begin with the analysis of Art. 2949 of the Italian Civil Code (c.c.<\/i>), which provides for a short limitation period of five years for rights deriving from corporate relations and for liability actions brought by corporate creditors against directors. The rationale behind the short statute of limitations in corporate law is rooted in the requirements of speed and promptness typical of commercial transactions, which are poorly suited to the ordinary ten-year limitation period governing relationships between private individuals (which was thirty years in the Civil Code of 1864 and ten years under Art. 917 of the Commercial Code of 1882). However, the scope of application of this provision must be specified from both a subjective and an objective perspective. As to the subjective profile, it is maintained that limiting the five-year limitation period to companies registered in the register of companies must be interpreted as excluding the extension of Art. 2949 c.c.<\/i> to simple partnerships (societ\u00e0 semplici<\/i>), despite their registration in the special section of the register (Cass., February 16, 2012, no. 2286). From an objective perspective, while the application of the provision to liability actions brought by corporate creditors against directors raises no doubts due to the express statutory provision to that effect, the generic reference to “rights deriving from corporate relations” poses greater difficulties. Legal doctrine tends to define these as all those relationships that would not arise if the entity lacked corporate status and structure, or if it were an individual transaction. Prior to the 2003 reform, this provision was referred to in order to identify the limitation period for corporate liability actions brought by the company for damages caused by its directors; the dies a quo<\/i> for the running of this period was fixed at the time of cessation of office, taking into account the operation of the tolling (suspension) mechanism for actions brought by legal entities against their own directors pursuant to Art. 2941, no. 7, c.c.<\/i>\n

The Doctrine of the Limitation Period for Liability Actions: The Regulatory Framework<\/h3>\nToday, Art. 2393, paragraph 4, c.c.<\/i> expressly provides for a five-year limitation period, and the most significant interpretative crux essentially concerns the dies a quo<\/i> for the running of this period. In particular, the cited provision explicitly dictates that the limitation period runs from the moment of cessation of office. According to some, this date should mark the beginning of the limitation period even if the harmful effects are not yet perceptible to the injured party, thereby aiming to avoid exposing directors to an open-ended (sine die<\/i>) liability for damages, independent of the legal possibility of bringing the action (evidently derogating from Art. 2935 c.c.<\/i>). However, the case law of the Supreme Court of Cassation has not ruled in this sense; rather, by resorting to the discoverability theory (tesi della conoscibilit\u00e0<\/i>), it has ruled that “the limitation period runs from the moment when the damage becomes objectively perceptible from the outside, meaning it has manifested itself in the financial sphere of the company, it being irrelevant for this purpose that the liability action is of a contractual nature pursuant to Art. 2392 c.c.<\/i> by virtue of the fiduciary relationship existing with the director” (Cass., 04.12.2015, no. 24715). Art. 2394, paragraph 2, on the other hand, establishes that the liability action available to corporate creditors may be brought when “the corporate assets prove insufficient to satisfy their claims” (naturally, within the five-year limitation period, pursuant to Art. 2949, paragraph 2, c.c.<\/i>).\n

The Role of Case Law in the Limitation Period for Liability Actions<\/h3>\nThe prevailing and settled orientation of the case law applies the discoverability theory in this scenario as well, affirming that “the related liability action can be brought by corporate creditors… from the moment when the insufficiency of corporate assets to satisfy claims emerges from any fact that can be known, even without a direct audit of the company’s accounts, it not being required for this purpose that it emerge from a financial statement approved by the shareholders’ meeting.” Normally, this moment is presumptively deemed to coincide with the opening of insolvency proceedings. The burden of overcoming this iuris tantum<\/i> (rebuttable) presumption rests on the director if they intend to prove that the insufficiency of corporate assets could have manifested itself at an earlier time (see, among others, Cass., 19\/06\/2019, no. 16505). Pursuant to Art. 2395 c.c.<\/i>, shareholders (and third parties) who are directly damaged by an act of the directors may also bring a liability action against them, provided that the damage is not a mere reflective consequence of the asset reduction suffered by the company due to management operations. This action is time-barred after five years “from the fulfillment of the act that prejudiced the shareholder.” It is believed that this rule must be read in conjunction with Art. 2497 c.c.<\/i>, so that the limitation period runs not from the moment the unlawful conduct occurred (whether it concerns contractual or tortious liability), but from the moment the harmful event materialized for the shareholder (or third party) and, if at a later stage, from when it became concretely perceptible from the outside (on this point, see Tribunal of Rome, 15\/02\/2016; Tribunal of Milan, 30\/04\/2001).\n

Specific Cases of Statutory Extension<\/h3>\nFurthermore, the law extends the standing to exercise the various liability actions mentioned here, previously to the bankruptcy trustee under Art. 146 of the Bankruptcy Law and Art. 2394-bis c.c.<\/i>, and today to the judicial liquidator under Art. 255 of the Crisis and Insolvency Code (Codice della Crisi<\/i>). Although the action brought by the liquidator can be described as unified, the statute of limitations runs differently, in accordance with the moments identified above, depending on the specific liability asserted (Tribunal of Bologna, 12\/07\/2021, no. 1662). In compliance with the approach favoring “discoverability,” the Court of Cassation has recently ruled on the running of the limitation period regarding liability actions brought against statutory auditors (sindaci<\/i>), which, similarly to those against directors, can arise vis-\u00e0-vis the company, corporate creditors, shareholders, and third parties. On this point, it is necessary to distinguish between a breach of duties falling within the oversight activity exercised over directors (concurrent liability) and the separate, additional obligations assigned to auditors independent of the latter (exclusive liability). The latter hypothesis exists, for example, for breaches of the duty of truthfulness in certifications and professional secrecy, as well as whenever the law requires the board of statutory auditors to act and it remains inactive, as occurs for procedures in the event of the termination of directors (Articles 2385 and 2386 c.c.<\/i>). Concurrent liability, conversely, takes the form of joint and several liability for culpa in vigilando<\/i> (negligence in supervision), which does not arise from the mere fact of damage inflicted on the company by the management organ, but rather from having failed to exercise supervisory duties according to professional diligence standards, which, if respected, could have prevented the harmful event. These elements of liability must therefore be demonstrated by the party bringing the action, since otherwise joint and several liability cannot rest upon the statutory auditors for damage caused by the directors. Art. 2407 c.c.<\/i> expressly provides for this distinction and, at the same time, extends the applicability of the provisions examined above to statutory auditors, insofar as they are compatible. In this regard, a recent ruling by the Court of Cassation is particularly interesting, clarifying that “with respect to the limitation period for liability actions brought by corporate creditors pursuant to Art. 2394 c.c.<\/i>, the financial statement constitutes, by virtue of its specific function, the primary informative document on the company’s status, not only towards shareholders, but also towards creditors and third parties in general; hence, a financial statement showing a profit or break-even is capable of offering reassuring and reliable information. When, subsequently, despite the statutory auditors’ report to the financial statements highlighting the inadequacy of the valuation of certain items, the shareholders’ meeting nevertheless resolves upon the distribution of profits to shareholders pursuant to Art. 2433 c.c.<\/i> without objections at that venue by the corporate management and control bodies, the capability or lack thereof of said auditors’ report to inherently supplement the element of objective discoverability for creditors regarding the falsity of the results certified by the corporate financial statements remains a question of fact, reserved for the judge of the merits” (Cass., 5\/9\/2018, no. 21662).\n

Limitation Period for Liability Actions: The Running of the Term<\/h3>\nWith respect to the analysis proposed regarding the running of the limitation period in liability actions, it must be recalled that the dies a quo<\/i> operates differently within the internal relations between directors and statutory auditors. In fact, it is possible that the damage caused to the company, the shareholder, and the creditors is actually attributable to multiple directors, thereby resulting in a scenario of joint and several liability under Art. 2392 c.c.<\/i> Consequently, if one of the directors were called upon to pay the entire amount, they could exercise a right of recourse (azione di regresso<\/i>) against the other board members. The same applies in the hypothesis where a succeeding director, in breach of their duties, failed to intervene to remedy the damages caused by the previous management and was therefore held liable for damages caused to legitimate stakeholders. Indeed, with reference to corporate liability actions against directors, it has been observed that they can “concern both cases involving directors who held office simultaneously, as well as hypotheses where they succeeded each other in the management of the company. In this latter case, however, as… with reference to the more general hypothesis of joint and several liability provided for by Art. 2055 c.c.<\/i>, it is required that the harmful event be unique. The uniqueness of the harmful event required by Art. 2055 c.c.<\/i> for the legitimate assertion of joint and several liability among the perpetrators of the tort must be understood not in an absolute sense, but in a relative sense toward the injured party; therefore, this form of liability arises even if the harmful event resulted from multiple actions or omissions, intentional or negligent, constituting distinct and even different unlawful acts, provided that the single actions or omissions efficiently contributed to the production of the damage” (Cass., 22\/04\/2009, no. 9619). To the joint and several bond of the directors, one must add that of the statutory auditors’ liability for the case of culpa in vigilando<\/i> examined above, just as the liability of individual members of the board of statutory auditors could be joint and several for breaches of obligations directly attributable to them (Cass., 14\/12\/2015, no. 25178), which can only be overcome if the dissenting auditor has caused their dissent to be recorded pursuant to Art. 2404, paragraph 4, c.c.<\/i> In this scenario, the action for recourse could be exercised against the other joint and several co-obligors solely within the limits of their respective liabilities, “expressly requesting such an assessment for the internal allocation of the burden of compensation with the co-responsible parties,” whereas unequal causal significance of the conducts is conversely deemed irrelevant in the relations between the tortfeasor and the injured party (Cass., 20\/12\/2018, no. 32930). Therefore, within the scope of an action for recourse, the limitation period will run from the moment the right can be enforced pursuant to Art. 2935 c.c.<\/i> and, thus, according to constant case law, from the moment payment was made, since only under this circumstance does the standing to act against joint and several co-debtors arise.\n
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