Quasi-guaranteeing nature of directors obligations
Chapter 6
The issue of the character of the board members’ responsibility for the company’s obligations under Article 299 § 1 of the Commercial Companies Code has long been causing doctrinal doubts in Polish law and leading to significant interpretational discrepancies. Literature and case law highlight a clash of several concepts in this regard. Among the two dominant views, one assumes a compensatory nature, while the other assumes a guaranteeing (or quasi-guaranteeing) nature. Both in doctrine and case law, the essence of the responsibility under Article 299 of the Commercial Companies Code is viewed differently [e.g., judgment of the Assembly of Seven Judges of the Supreme Court – Extraordinary Control and Public Affairs Chamber dated December 13, 2022, I NSNc 433/21].
While in Poland idea that it is a compensatory measure currently prevails, for U.S. standards I would call it rather severe guaranteeing measure with no much room for discussion about personal culpability of director’s actions.
The assertion that US law does not align with the concept of directors potentially bearing quasi-guaranteeing responsibility for their company’s debts would be a significant understatement. This notion would be deemed as alarming, and any deliberations on this topic would be unequivocally dismissed as preposterous.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.