Given the importance of this topic, in this relaunch of my personal blog, I am excited to share some opinions on joint liability in obligations, with a special focus on customs and foreign exchange areas.
The scholar Tulio Guzmán Civeta, who was my professor in the study of normative systems and Roman institutions, stated in his work: Roman Law: “The obligation - obligatio - is a legal bond by virtue of which a debtor - is constrained before another creditor - to perform a certain obligation.”
In the Colombian legal system, Article 633 of the Civil Code defines the legal person as follows:
“The company, once legally established, forms a legal entity distinct from the individual partners.”
The obligations acquired by individuals carry an implicit responsibility to fulfill them, and failure to do so generates different types of consequences for the defaulting party.
The consequences of non-performance primarily affect the directly liable party, meaning the person who committed the act giving rise to the obligation. However, these consequences may also extend to third parties who may be called to respond, either by operation of law or through private agreement.
- Joint Liability in Roman Law
The Roman legal system, in terms of joint liability for obligations, provided for the necessity of the creditor to separately question the debtors, who would respond that they accepted the obligation by saying “spondemus”.
Although contractual joint liability was present in Roman law, it was not established as a fundamental rule. However, the institution of debt division was maintained, even after the fall of the Roman Empire.
- Joint Liability in Civil and Commercial Law
Influenced by the Romanist legal system, Colombian regulatory frameworks established that in civil matters, joint liability must arise ex negotio or ex lege (Article 1568 of the Civil Code). In contrast, in commercial matters, if there is a plurality of debtors, joint liability is presumed (Article 825 of the Commercial Code).
- Joint Liability in Tax Law
With regard to tax matters, Article 793 of the Tax Statute establishes joint and several liability and specifies who is liable alongside the taxpayer for the payment of the tax. Meanwhile, Article 794 provides for the joint and several liability of partner members, associates, cooperators, joint owners, and consortium members for the taxes of the company.
- Joint Liability in Customs and Foreign Exchange Law
In customs and foreign exchange matters, Article 13 of Law 1066 of 2006, which establishes standards for the normalization of the public portfolio and dictates other provisions, provides for:
The Constitutional Court, by judgment C-140 of 28 February 2007, declared Article 13 enforceable on the following grounds:
Pursuant to Article 13 of Law 1066 of 2006, or the standard that modifies or replaces it, in customs matters, joint liability and subsidiary liability shall apply to the total amount of customs duties, penalties, interest, and their adjustments in the manner established in Articles 793, 794, 794-1, and 828-1 of the Tax Statute.”
On the other hand, Decree 2245 of 2011, which establishes the foreign exchange sanctioning regime under the authority of the National Tax and Customs Directorate (DIAN), enshrined in its Article 33:
Those held jointly liable for the payment of the penalties referred to in this decree, imposed on legal entities or entities assimilated to them, include legal representatives, partners, administrators, associates, cooperatives, consortium members, community members, participants, fiscal reviewers, officials, and employees, as well as the absorbing company, who authorize or execute acts that violate foreign exchange regulations or fail to comply with them.”
It should be noted that joint liability in customs and foreign exchange matters arises by virtue of the law, particularly in the following scenarios:
- The joint liability of general and special agents in the subscription and filing of declarations.
- The joint liability of heirs and legatees for the obligations of the deceased.
- The joint liability of partners in dissolved companies.
- The joint liability of partners in active companies concerning the obligations incurred in the course of their commercial and service activities.
- The joint liability of shareholders who have committed, participated in, or facilitated acts of fraud or abuse of the corporate personality of the company to defraud the tax administration, or in an abusive manner as a mechanism for tax evasion.
- In merger agreements, the joint liability of the absorbing company for the obligations of the absorbed company.
- The joint liability between subordinate companies and their parent company abroad.
- The joint liability of the assets of partnerships or joint ventures of legal entities without legal personality.
Thus, it is essential in any customs or foreign exchange action to keep in mind the joint liability concerning the obligations arising from the execution of the economic event, which arises by operation of law, enabling the involvement of various liable parties in the respective process.
In this context, in the current world of constant change, where new commercial and service exchange schemes are created daily, comprehensive planning and continuous monitoring of the various international transactions that any organization develops or plans to develop becomes the best risk prevention tool. If these risks materialize, they can directly or indirectly impact the legal entity, its partners, administrators, and employees.
Thank you for reading me…
