Law
Legal News [May 2026]: Is a managing director liable for failure to file an insolvency petition?
In its May decisions, the Supreme Court addressed several distinct issues of private law. In one case, it concluded that the unauthorized use of a minor’s photograph on promotional posters does not in itself necessarily give rise to a claim for monetary compensation, while in another it strengthened consumer protection in assessing the limitation period for unjust enrichment claims. Other judgments focused on the liability of managing directors for failure to file an insolvency petition, the limits of the creditor’s right to avoid equivalent legal transactions, and the conditions for compensation for lost profit arising from a breach of an agreement to conclude a future contract.
- In judgment file No. 25 Cdo 1488/2024, the Supreme Court considered whether the unauthorized taking and repeated publication of a photograph of the minor claimant on posters promoting a music event justified monetary compensation. It concluded that it did not. Although the conduct constituted an unauthorized interference with the right to likeness and image, the harm did not reach such intensity as to justify financial compensation.
- The Supreme Court judgment file No. 33 Cdo 2456/2025 addressed the limitation of the right to restitution of unjust enrichment arising from performance provided under an absolutely invalid consumer credit agreement. By establishing the principle of effectiveness, the Court of Justice of the European Union determined that, in the case of consumer contracts, the commencement of the limitation period cannot be linked to the date of performance if this would prevent the effective protection of consumer rights. The limitation period therefore begins to run only from the moment when the consumer became aware that the performance had been provided without legal basis – in this case, from the date on which the decision discontinuing the enforcement proceedings became final. The four-year limitation period under Section 397 of the Commercial Code is therefore contrary to EU law.
- In judgment file No. 29 Cdo 598/2025, the Supreme Court focused on the interpretation of the conditions for the liability of a member of a statutory body for damage caused by a breach of the duty to file an insolvency petition. In the case at hand, the creditor had no objective possibility to lodge its claim, as insolvency proceedings had never been initiated and the company had been struck off the Commercial Register following liquidation. The creditor therefore sought compensation directly from the company’s former managing directors under Section 99 of the Insolvency Act. The Supreme Court concluded that the liability of a managing director for damage caused by failure to file an insolvency petition may arise even if insolvency proceedings never took place, particularly where this circumstance is the result of a breach of duty by the statutory body itself. Failure to lodge a claim within the forfeiture filing period cannot be held against a creditor who objectively had no opportunity to lodge its claim in insolvency proceedings.
- In judgment file No. 29 Cdo 666/2024, the Supreme Court addressed the interpretation of the concept of a legal act prejudicing the satisfaction of a creditor within the framework of the creditor’s avoidance right under Sections 589 and 590 of the Civil Code. The Court focused in particular on whether so-called equivalent legal transaction may also be challenged under creditor’s avoidance right. In the case at hand, the creditor challenged a purchase agreement under which the debtor transferred an ideal half-share in real estate to a related person and argued that, although consideration had been provided, the transaction effectively reduced the creditor’s ability to obtain satisfaction. The debtor had used the received funds for purposes other than repayment of the debt. The Supreme Court concluded that an equivalent legal act is generally not ineffective if the debtor actually received the usual price or other adequate consideration for the transferred assets and the mere change in the structure of assets did not lead to a deterioration in the creditor’s ability to obtain satisfaction. According to the Supreme Court, the debtor’s subsequent handling of the received consideration is not relevant for assessing ineffectiveness.
- In judgment file No. 23 Cdo 2670/2025, the Supreme Court dealt with a claim for compensation for lost profit arising from a breach of an agreement to conclude a future contract, which the parties had entered into in connection with the defendant’s participation in a public procurement procedure. As a future subcontractor, the claimant was to cooperate in preparing the bid and, if the defendant succeeded, participate in the implementation of the project with an agreed share of the profit. However, after the defendant succeeded in the tender procedure, the future contract was not concluded and the project was implemented with another entity. The Supreme Court confirmed that a breach of obligations under an agreement to conclude a future contract may give rise to a right to compensation for lost profit from the unexecuted future contract, without the need for prior proceedings seeking determination of its content. At the same time, it emphasized that lost profit must represent a realistically attainable economic benefit, not merely a hypothetical expectation. In order to award such compensation, it is necessary to determine at least the basic content of the future contract and the costs required to achieve the anticipated profit. As these circumstances had not been sufficiently established in the proceedings, the Supreme Court quashed the decisions of the lower courts and remanded the case for further proceedings.
