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

Company Law (en cours)

A creditor can only pursue one or more general partners at least eight days after having unsuccessfully served a formal notice to the SNC by extrajudicial act . Indeed, the general partners are not co-debtors of the company , so a creditor can only take action against them if they prove they are pursuing the execution of a corporate obligation and have first attempted to obtain payment from the co …

Useless formal notice

A creditor can only pursue one or more general partners at least eight days after having unsuccessfully served a formal notice to the SNC by extrajudicial act . Indeed, the general partners are not co-debtors of the company , so a creditor can only take action against them if they prove they are pursuing the execution of a corporate obligation and have first attempted to obtain payment from the company . Unlike the rules applicable to civil companies, Article L. 221-1 of the Commercial Code only requires a formal notice and does not demand unsuccessful proceedings .

Formally, the formal notice can, in principle, only be carried out by means of an extrajudicial act , issued by a bailiff , and not by a simple letter  or registered letter with acknowledgment of receipt . Even in the matter of tax debt recovery, where a simplified formality applies, the formal notice to the SNC must be carried out by extrajudicial act and not by registered letter with acknowledgment of receipt, to allow for subsequent proceedings against its partners . The issuance to the SNC of an order for seizure and sale, putting it on notice to settle its debt, followed by two unsuccessful garnishments, allows the creditor to act against the general partners , even in the event of an error in the amount claimed .

The formal notice to the SNC can a fortiori result from its summons for payment by the creditor . However, the joint summons of the SNC and its partner by a social creditor does not constitute prior formal notice to the company by extrajudicial act , even if it has not settled its debt within eight days of the summons . A payment order served to an SNC after the summons of a general partner does not constitute formal notice to the company either, since it must necessarily be formally notified by extrajudicial act prior to the summons of a partner .

When the SNC is subject to insolvency proceedings, the filing of a claim against the company's liabilities serves as a formal notice  and exempts the creditor from having to issue an extrajudicial document before initiating proceedings against its partners . Conversely, creditors who have neither filed their claim in time nor requested a waiver of foreclosure cannot pursue the payment of social debts against a general partner . Furthermore, a general partner cannot be called upon, as a secondary debtor, to settle an interest claim when the creditor has only declared the principal of the borrowed sum against the SNC's liabilities .

The formal notice opens a period of eight days , during which the SNC must either settle the debt or provide sufficient security to preserve the entirety of the creditors' rights . However, the existence of securities attached to the original debt cannot be equated with the securities that the SNC must provide to the creditor within eight days of the formal notice to avoid implicating its partners . Therefore, the mortgage allocation granted by the SNC at the time of the credit opening cannot be equated with the provision of security for the payment of a social debt, which has become due as a result of the formal notice issued by the creditor, unless it disregards the principle of joint liability of the partners and obstructs any action against them as soon as a security, however minimal, has been taken at the time of the initial commitment .

In the absence of formal notice to the SNC prior to the action directed against a general partner, the creditor's claim must be met with a plea of inadmissibility due to its inadmissibility .

Finally, since any enforcement action requires that the creditor holds an enforceable title against the very person who must perform, the corporate creditor must hold an enforceable title against the partners themselves in order to seize their assets, and not just a title issued against the company alone  .

Commercial Code, Art. L. 221-1, para. 2 and R. 221-10, para. 1.

Cass. com., 29 October 2003, LawLex202200007254JBJ.

CA Montpellier, 10 December 2015, LawLex202200009668JBJ.

CA Paris, 10 April 2013, LawLex202200009673JBJ.

Cass. 3e ch. civ., 5 December 2001, LawLex202200007501JBJ.

CA Toulouse, 17 December 2015, LawLex202200008759JBJ. - Contra, See CA Paris, 21 November 2013, LawLex202200008758JBJ.

Cass. com., 17 January 2006, LawLex202200009757JBJ.

Cass. com., 19 December 2006, LawLex202100003575JBJ; CA Toulouse, 17 April 2019, LawLex202200009665JBJ.

CA Rennes, 6 May 2008, LawLex202200009726JBJ; CA Amiens, 22 January 2015, LawLex202200009867JBJ; CA Montpellier, 3 November 2015, LawLex202200009782JBJ; CA Paris, 15 November 2016, LawLex202200009797JBJ; CA Bordeaux, 21 March 2017, LawLex202200009798JBJ; CA Rennes, 5 April 2017, LawLex202200009804JBJ; 27 June 2017, LawLex202200009859JBJ; 30 June 2017, LawLex202200009801JBJ.

CA Poitiers, 28 October 2016, LawLex202200009760JBJ.

Nancy, 24 June 2015, LawLex202200009668JBJ.

Commercial Code, Art. R. 221-10, para. 2: this period may be extended by order of the president of the commercial court ruling in summary proceedings.

Cass. civ., 28 March 1898, LawLex202200008984JBJ; Lyon, 29 November 2011, LawLex202200009753JBJ; Papeete, 9 April 2015, LawLex202200008756JBJ.

Commercial Code, Art. R. 221-10. - For an application, See Versailles, 14 January 1999, LawLex202200007427JBJ.

Paris, 19 November 2013, LawLex202200007252JBJ.

CA Versailles, 14 January 1999, previously cited.

CA Bordeaux, 29 September 2021, LawLex202200009870JBJ.

Cass. 2e ch. civ., 19 May 1998, LawLex202100002593JBJ.

Cass. com., 3 May 2006, LawLex202200007286JBJ. - See also Cass. 2e ch. civ., 19 May 1998, LawLex202100002593JBJ; Cass. com., 26 October 1999, LawLex202200009669JBJ.

On the distinction, See Cass. com., 10 February 2015, LawLex202200010338JBJ.

CA Versailles, 18 September 2014, LawLex202200009841JBJ; CA Douai, 5 October 2017, LawLex202200009672JBJ.

Cass. com., 1 June 1993, LawLex202200009756JBJ.

Cass. com., 14 June 2000, LawLex202200008256JBJ.

Cass. com., 20 February 2007, LawLex202200009758JBJ.

CA Chambéry, 27 November 2018, LawLex202200009858JBJ.

Company Law (en cours)

366. Useless formal notice

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366. Useless formal notice

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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