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Company Law (en cours)

Pursuant to Article L. 221-14, para. 2, of the Commercial Code, the transfer of shares is only enforceable against third parties after the completion of the formalities for enforceability against the company and after the publication of the amended articles of association in the trade and companies register. The publication can be carried out electronically , and must be completed by filing, as an …

Publication of the amended articles of association in the RCS

Pursuant to Article L. 221-14, para. 2, of the Commercial Code, the transfer of shares is only enforceable against third parties after the completion of the formalities for enforceability against the company and after the publication of the amended articles of association in the trade and companies register. The publication can be carried out electronically , and must be completed by filing, as an annex to the trade and companies register, two copies of the transfer deed if it was executed in authentic form, or two originals if it is under seing private . Indeed, the publication in the RCS of the transfer deeds and the minutes of the general meeting during which the new partners were approved, as well as the amendment of the articles of association, are likely to make the transfer enforceable against third parties . The failure to complete these publicity formalities, which inform third parties of the transfer of shares of an SNC, cannot be invoked by the parties to this act . Furthermore, the transfer of shares is not enforceable against a creditor of the SNC when it would result in reducing the number of partners below the legal minimum since an SNC must include at least two partners .

In its previous version, Article L. 221-14 only considered the publication in the RCS of the transfer itself as a condition for its enforceability against third parties, so that the failure to fulfill this formality rendered the transfer unenforceable against any third party, whether or not they were otherwise aware of it .

The transfer of ownership interests must be documented in writing , failing which the transferee may request the rescission of the transfer based on the transferor's breach of their delivery obligation, as long as they are unable to complete any of the necessary formalities to make the transfer effective . Indeed, the transfer of ownership interests is not enforceable against third parties if the enforceability formalities vis-à-vis the company have not been completed prior to or simultaneously with the filing of the transfer documents with the commercial court registry . Consequently, sending two copies of the transfer document of ownership interests in an SNC to the competent registry is not sufficient to make it enforceable against third parties and to release the transferors from their obligation to pay the company's debts if the document has not been effectively published . Furthermore, when the person responsible for drafting the transfer document of ownership interests fails to publish this transfer in the trade and companies register, they are liable due to their fault to indemnify the transferor for all judgments and amounts payable related to the company's liabilities, which is subsequently placed in judicial liquidation .

The question of enforceability against third parties of the transfer of ownership interests is very often raised in the context of insolvency proceedings, as it is necessary to determine the partners liable for the company's debts as of the date of the commencement order. Indeed, the transfer of ownership interests in an SNC is unenforceable against the insolvency proceedings when its registration with the RCS has not been completed . Furthermore, the transferor who continues to exercise the rights attached to the ownership of the interests by interfering in the company's operations cannot rely on the provisions of the transfer deed to avoid paying the company's debts . However, when the transfer has been duly published, it is enforceable against third parties, and in particular against the company's landlord, who cannot see in the total transfer of interests in an SNC the creation of a new legal entity to which they could notify a lease termination .

Commercial Code, Art. L. 221-14, para. 2.

Cass. 1re civ., 25 June 1996, LawLex202200007651JBJ.

Cass. com., 10 December 1996, LawLex202200007650JBJ.

Cass. com., 16 December 1997, LawLex202200007516JBJ.

Cass. 3e civ., 7 April 1994, LawLex202200007454JBJ.

CA Versailles, 2 February 2017, LawLex202200009640JBJ.

Cass. com., 24 November 2009, LawLex202200007499JBJ.

CA Rennes, 5 April 2017, LawLex202200009804JBJ.

Cass. com., 27 January 1998, LawLex202200007565JBJ.

Civil Code, Art. 1865, para. 1 and Commercial Code, Art. L. 221-14, para. 1.

Cass. com., 7 April 2009, LawLex202200007564JBJ.

Cass. com., 9 June 1998, LawLex202200007613JBJ.

CA Colmar, 14 February 2012, LawLex202200010406JBJ.

Company Law (en cours)

357. Publication of the amended articles of association in the RCS

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357. Publication of the amended articles of association in the RCS

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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