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Company Law (en cours)

The terms for the transfer of shares within the SCS are subject to specific rules. By reference to the rules applicable to the general partnership, the shares of the limited partnership cannot be represented by marketable securities. Furthermore, Article L. 222-8 of the Commercial Code states that shares can only be transferred with the consent of all partners. However, the articles of association …

Transfer of shares

The terms for the transfer of shares within the SCS are subject to specific rules. By reference to the rules applicable to the general partnership, the shares of the limited partnership cannot be represented by marketable securities. Furthermore, Article L. 222-8 of the Commercial Code states that shares can only be transferred with the consent of all partners. However, the articles of association may stipulate that the shares of limited partners are freely transferable among partners, that they may be transferred to third parties outside the company with the consent of all general partners and the majority in number and capital of the limited partners , or that a general partner may transfer part of their shares to a limited partner or a third party outside the company under the same conditions as provided above. In the latter case, the statutory approval clause applies to all transfers of shares by the general partner to a third party outside the company, without distinguishing whether they result from a division of the legal community or a sale .

In accordance with Article L. 221-14 of the Commercial Code, the transfer must, to be enforceable against the company, have been notified to it in the forms provided for in Article 1690 of the Civil Code. Failing this, the deposit of an original of the transfer deed at the registered office against the issuance by the manager of a certificate of this deposit may suffice . With regard to third parties, the enforceability of the transfer also requires the publication of the amended statutes in the trade and companies register . A "third party," within the meaning of Article L. 221-14, includes the judicial liquidator of an SCS when invoking, in the collective interest of the creditors of the proceedings, the unenforceability of a transfer of shares . The failure to observe the formalities required to make a transfer of SCS shares enforceable against third parties does not fall under commercial prescription, as they do not constitute an obligation arising from commerce between merchants, or between merchants and non-merchants . Despite compliance with these formalities, the transfer of all the shares of a general partner does not prevent the court from being seized, within one year from the mention of their withdrawal in the RCS, for the purpose of opening reorganization or judicial liquidation proceedings against them, when the cessation of payments by the legal entity predates this mention .

Regarding the transfer of shares due to death, it is necessary to distinguish whether the deceased partner was a limited partner or a general partner. As in a general partnership, the death of a general partner typically ends the limited partnership, unless the articles of association provide for its continuation. In such a case, Article L. 222-10 states that if it is stipulated that despite the death of one of the general partners, the company continues with their heirs, these heirs become limited partners if they are unemancipated minors. If the deceased partner was the sole general partner and all heirs are unemancipated minors, a new general partner must be appointed or the company must be transformed within one year from the date of death. Failing this, the company is dissolved by operation of law at the end of this period. Conversely, the company continues despite the death of a limited partner. In this case, the heirs who are part of the estate division acquire the status of partners only upon distribution .

See CA Bordeaux, 10 March 1892, LawLex202300014070JBJ, emphasizing that no principle prohibits the limited partner from transferring their share in the capital and profit of the limited partnership to a third party, provided they retain this status vis-à-vis the general partner.

Cass. 1re civ., 12 November 1987, LawLex202300009020JBJ.

Similarly, Cf. CA Amiens, 28 October 2010, LawLex202300009089JBJ, also holding that the transfer of shares in a limited partnership (SCS) that has not been notified to the company is nevertheless enforceable against it when it has been ratified by an extraordinary general meeting bringing together all the partners, followed by an update of the articles of association concerning the new distribution of the share capital.

Before Ord. No 2014-863 of 31 July 2014, Art. L. 221-14 only required the publication in the RCS of the transfer itself as a condition for its enforceability against third parties. For an application to the SCS under the former wording, See Amiens, 28 October 2010, LawLex202300009089JBJ.

Cass. com., 25 September 2012, LawLex202200007008JBJ, approving CA Amiens, 28 October 2010, LawLex202300009089JBJ.

Cass. com., 3 April 2002, LawLex202300009091JBJ.

Cass. com., 9 October 1972, LawLex202300014058JBJ.

Company Law (en cours)

425. Transfer of shares

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425. Transfer of shares

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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