The Colombian Commercial Code, in its article 172 and subsequent articles, establishes the provisions related to the legal institution of merger, specifying that a merger occurs when one or more companies are dissolved without being liquidated, with the aim of being absorbed by another company or for the creation of a new one. Now, in accordance with article 175, creditors of the absorbed company may demand satisfactory and sufficient guarantees for the payment of their credits, for which they have a term of 30 days, counted from the date of publication of the merger agreement. Based on this faculty, the question then arises as to whether the expression "credits" set forth in article 175 refers exclusively to monetary obligations or, on the contrary, encompasses obligations indistinctly, for which the Superintendence of Companies has indicated that creditors of a company that has the characteristics of being absorbed will have the faculty to demand guarantees for the payment of their credits regardless of the nature of the type of rights they demonstrate.
According to the foregoing, the expression "credits" includes obligations not only of a credit or economic nature, but also obligations to give, to do, and not to do, among others. Likewise, uncertainty arises as to whether this faculty is also established for creditors of the absorbing company, for which it must be taken into account that:
The rule expressly stipulates that this right to request guarantees on the part of the creditor of the absorbed company will be carried out through judicial proceedings under the terms already stated, and if appropriate, the competent judge must suspend the merger agreement of the debtor company until guarantees are provided or the credits are paid. Without prejudice to this, after the 30-day term has passed without the guarantees having been requested, or in the event that they have been granted, in either case, the obligations of the absorbed companies with their guarantees will continue, but with respect to the absorbing company.
That is to say, initially by express will of the legislator, those entitled to request guarantees in merger cases are the creditors of the absorbed company; however, the Superintendence of Companies does not disregard the right that evidently assists the creditors of the absorbing company, since their general lien may be affected by assuming rights and obligations of the absorbed companies.
Thus, it is clear that the guarantees referred to in article 175 protect not only monetary obligations, but also those of any other nature, since merger cannot be used as a mechanism to evade compliance with obligations of a nature other than monetary, which are in favor of third parties and held by the absorbed company. But according to the law, only the creditors of the absorbed company are expressly entitled.
Prepared by: Valentina Peña Rueda . Consulting Attorney.