All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

Before the reform resulting from Ordinance No 2023-393 of 24 May 2023 , the submission of partial asset contributions to the regime of spin-offs entailed, by reference, the application of Articles L. 236-20 and L. 236-21 of the Commercial Code, which respectively provided for a principle of joint liability between the contributing and beneficiary companies and an option to derogate from this principle. The reform established, for the benefit of partial asset contributions, a specific regime for creditor protection within Articles L. 236-29 and L. 236-30 of the Commercial Code, without significant modification of the previous solutions.

The first of these texts provides for a principle of joint liability between the contributing company and the beneficiary company of the contributions, which implies that, even after the operation, the contributing company is obliged to compensate for any damages suffered by the creditors , unless it establishes that the damage in question arose after the operation .

The second establishes an exception allowing participating companies to exclude joint liability . Indeed, the contribution agreement under the regime of spin-offs can expressly provide that the liabilities transferred will be borne solely by the beneficiary company, without joint liability of the contributing company . In this case, the responsibility of the contributing company can no longer be sought after the operation . Thus, the contributing company is not obliged with the beneficiary company to pay the transferred debts if the parties have excluded joint liability between them . The courts interpret such clauses strictly and consider that the article of the partial asset contribution agreement under the regime of spin-offs, which stipulates that the beneficiary company will assume the liabilities related to the transferred business branch, cannot be considered as excluding the joint guarantee of the contributing company for the payment of the transferred debts . Furthermore, the implementation of the exception can be thwarted by the inexcusable fault of the contributing company. Indeed, even if the partial asset contribution agreement excludes joint liability between the parties concerning the liabilities transferred by the contributing company, an employee can take action for recognition of an inexcusable fault against the latter, whose legal personality has not disappeared .

Ord. No 2023-393 of 24 May 2023 on the reform of the regime for mergers, spin-offs, partial asset contributions, and cross-border operations of commercial companies, OJ 25 May 2023. - Also see, D. No 2023-430 of 2 June 2023, OJ 3 June 2023

Cass. 2e civ., 19 February 2009, LawLex202200009739JBJ; Cass. com., 12 December 2006, LawLex202200009978JBJ; 8 February 2011, LawLex202200009738JBJ; CA Chambéry, 7 January 2020, LawLex202200011282JBJ.

Paris, 18 December 2019, LawLex202200011300JBJ.

Versailles, 28 January 2021, LawLex202200011273JBJ, considering that when the parties to a partial asset contribution have waived the joint liability between the contributing company and the beneficiary companies, the creditor must divide its actions against the latter for the recovery of its claim.

Cass. com., 23 November 2010, LawLex202200009979JBJ; CA Douai, 16 September 2021, LawLex202200011265JBJ.

Lyon, 26 February 2021, LawLex202200011290JBJ; Paris, 15 March 2021, LawLex202200011271JBJ.

Paris, 15 January 2021, LawLex202200011293JBJ.

Douai, 15 September 2022, LawLex202200011260JBJ; Nancy, 3 July 2019, LawLex202200011285JBJ, considering that the partial asset contribution agreement under the regime of spin-offs exempts the contributing company from all liability when it stipulates that the beneficiary company will assume all liabilities as of the date of completion of the contribution, without joint liability between them.

CA Rouen, 27 February 2019, LawLex202200011286JBJ.

260. Principle and exception.