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Company Law (en cours)

Pursuant to Article 1832 of the Civil Code, the partners undertake to contribute to losses. The contribution to social losses differs from the obligation for social debts in that the obligation for debts is an engagement attached to the status of partner , whereas the contribution to losses is an engagement of the partners arising from the very existence of any company . Secondly, these two concep …

Commitment of partners to contribute to losses

Pursuant to Article 1832 of the Civil Code, the partners undertake to contribute to losses. The contribution to social losses differs from the obligation for social debts in that the obligation for debts is an engagement attached to the status of partner , whereas the contribution to losses is an engagement of the partners arising from the very existence of any company . Secondly, these two concepts differ in that the obligation for debts is enforced by the creditors' action , who can demand it at any time during the company's life , whereas the contribution to losses is enforced by the company itself, only in the event of its dissolution, unless otherwise provided by legal, regulatory, or statutory provisions . This contribution cannot be demanded when the SNC is undergoing liquidation, as this does not equate to dissolution, unless its statutes provide for an annual contribution , or stipulate that, by unanimous decision, the partners in the name may directly assume the loss of a fiscal year in proportion to the number of their shares .

Contrary to the rules applicable to the obligation for debts, partners in a general partnership (SNC) only contribute to losses in proportion to their share in the corporate capital , so that a partner in an SNC cannot be ordered to bear the entire liability, with the responsibility to then seek recourse against their co-partners . In fact, an SNC can, after its dissolution, claim from a partner their contribution to losses in proportion to their participation in the corporate capital, even if it has not pursued the other partners, as long as its statutes do not allow it to do so beforehand . Moreover, in the absence of a provision specifying a determined period within which an SNC must claim from the partners the contribution to social losses resulting from the partnership agreement, the latter cannot oppose any prescription . However, a partner cannot be called upon to pay an advance granted by a judgment even if the SNC's statutes provide that losses approved by the assembly must be settled as soon as they are recognized . Furthermore, the partner who has made a contribution to cover the distribution of losses not only concerning themselves but also for the share of the other partners is subrogated to the company's claim and can obtain their condemnation to reimburse their share . Conversely, one who, under the guise of a capital increase followed by a reduction of the same amount, makes a contribution that extinguishes an SNC loss beyond what is due, effectively grants an indirect donation to their co-partners . Finally, in the event of a transfer of shares, the transferor is not required to contribute to the social losses recorded by the SNC when the closing of the fiscal year occurs after the transfer . Moreover, the transfer of shares cannot result in transferring to the transferee the obligation to contribute, upon the closing of the fiscal year, to the loss, as long as the transferor themselves is not required to contribute .

The commitments of a partner can never be increased without their consent . Therefore, a resolution adopted unanimously by the general meeting of an SNC, which expresses the "wish" for contributions from partners in proportion to their shares to cover the company's losses, creates an obligation for each of them to comply in the interest of the company, despite the non-binding nature of the terminology used . However, the agreement by which a partner of an SNC transfers to their co-partner the right to receive all profits in exchange for a fixed remuneration constitutes an unlawful commitment because it aims to guarantee them a certain profit and places the entire burden of potential losses on their co-contractor .

Until Ordinance No 2014-326 of 12 March 2014, the judgment opening judicial liquidation automatically resulted in the dissolution of the company . This made the action of the judicial liquidator admissible, based on Article 1832 of the Civil Code, against the general partners to determine their contribution to social losses . The judicial liquidator, vested with the representation of the debtor divested of assets, was indeed admissible to act against the partners of an SNC to have their contribution to social losses determined by considering the amount of their contributions, the social liabilities, and the proceeds from the realization of assets . Since the 2014 Ordinance, only the judgment closing the liquidation results in the disappearance of the company . Therefore, in the absence of the company's disappearance solely due to its liquidation, the liquidator cannot act against the partners based on the contribution to losses .

Cass. com., 3 March 1975, LawLex202200003220JBJ.

CA Lyon, 24 November 2005, LawLex202200009991JBJ.

CA Paris, 11 March 2016, LawLex202200009971JBJ.

T. com. Paris, 2 May 2014, LawLex202200009871JBJ.

Cass. com., 3 March 2009, LawLex202200008602JBJ.

Cass. com., 31 March 2004, LawLex202200007508JBJ.

Cass. com., 13 November 2003, LawLex202200007498JBJ.

CA Toulouse, 15 March 1993, LawLex202200009982JBJ.

Cass. com., 18 October 1994, LawLex202200003458JBJ.

Cass. com., 27 September 2016, LawLex202100002936JBJ.

CA Besançon, 18 October 2016, LawLex202200009943JBJ; CA Paris, 24 October 2019, LawLex202200010016JBJ.

CA Rennes, 15 October 2019, LawLex202200009928JBJ.

Cass. com., 3 March 1975, precit; CA Paris, 2 July 2009, LawLex202200010147JBJ.

Cass. com., 29 October 2003, LawLex202200007895JBJ.

Cass. com., 7 May 2019, LawLex202200003267JBJ; See contra CA Dijon, 24 November 2016, LawLex202200010015JBJ, considering that a partner in an SNC in judicial liquidation may be called upon, under their contribution to social losses, to settle the entirety of the social liabilities, with the responsibility to seek recourse against the other partners in proportion to their respective shares.

CA Versailles, 13th ch., 13 January 2011, LawLex202200009970JBJ.

Company Law (en cours)

371. Commitment of partners to contribute to losses

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371. Commitment of partners to contribute to losses

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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