Two companies entered into an agreement in which one undertakes to provide consulting services to the entrepreneurial company in the framework of a real estate construction project, in exchange for a certain percentage of the proceeds received from the sale of the apartments in the project. After the entrepreneurial company refused to pay the consideration and after it became clear that the tender was submitted by another company in the group of the entrepreneurial company, the consulting company sought to obligate the company that submitted the proposal and its shareholder, personally, to pay the consideration.
The Court held that there is no reason to impose a personal liability on a shareholder. While in certain cases, the fact that the shareholder is the "living spirit" behind the company's activity constitutes a sufficient motive for imposing a personal liability on the shareholder, a breach of contract by the company does not, as a rule, establish liability for its officers and organs. In the case of imposing a personal liability on an organ or officer for conducting pre-contract negotiations on behalf of the company, the standard of conduct to be examined is subjective, so it is necessary to show subjective personal fault, and not just a breach of an accepted norm of conduct. In this case, while the shareholder in the entrepreneurial company did not disclose at the negotiation stage that the tender would ultimately be submitted by another company in the group, subjectively it does not appear that he had any intention of defrauding or depriving the consulting company and therefore there is no reason to obligate him personally.