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Company Law (en cours)

The partners of the company in its new form remain liable for debts incurred before the transformation, so the restructuring has relatively little impact on the situation of the corporate creditors.
The case law goes further and even considers that the change in form of the principal debtor company, which does not result in the creation of a new legal entity, leaves the guarantor's obligation to t …

Impact of transformation on guarantees

The partners of the company in its new form remain liable for debts incurred before the transformation, so the restructuring has relatively little impact on the situation of the corporate creditors.

The case law goes further and even considers that the change in form of the principal debtor company, which does not result in the creation of a new legal entity, leaves the guarantor's obligation to the creditor intact, unless otherwise agreed . Thus, in the absence of any express provision excluding it , the guarantor remains bound by their guarantee obligation after the restructuring operation of the company for which they committed .

Cass. com., 20 February 2001, LawLex202200009404JBJ; 2 October 1979, LawLex202200009486JBJ; 9 December 1997, LawLex202200009487JBJ, holding that the transformation of an SARL into an SA and the potential loss of shareholder status resulting from it has no impact on the continuation of the guarantee provided as security for the loan granted to the company in its initial form;

Cass. com., 9 April 1973, LawLex202200009488JBJ, considering that the transformation of an SNC into an SA does not result in the creation of a new legal entity, so that the guarantee commitment undertaken under the former corporate form continues after the restructuring operation if the guarantors had not imposed any restriction on their commitment regarding a possible change in the company's form; Cass. 1re civ., 18 June 1991, LawLex202200007760JBJ, indicating that the transformation of an SNC into an SARL, which does not result in the creation of a new legal entity, does not call into question the company's guarantee act, when it does not make the maintenance of the company in its initial form or the potential recourse of the guarantor against the partners a determining condition of the commitment.

Cass. com., 29 March 1994, LawLex202200009489JBJ.

Company Law (en cours)

218. Impact of transformation on guarantees

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218. Impact of transformation on guarantees

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise