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

Company Law (en cours)

Civil companies are partnerships. Indeed, as in the latter, Article 1857, para. 1, of the Civil Code provides that partners are personally and indefinitely liable for the company's debts, proportionally to their contributions. However, since joint and several liability exists only in commercial matters, this liability is only joint, which requires creditors to divide their claims.

Furthermore, pa …

Intuitu personae

Civil companies are partnerships. Indeed, as in the latter, Article 1857, para. 1, of the Civil Code provides that partners are personally and indefinitely liable for the company's debts, proportionally to their contributions. However, since joint and several liability exists only in commercial matters, this liability is only joint, which requires creditors to divide their claims.

Furthermore, partnerships are subject to a tax transparency regime. Indeed, it follows from Article 8 of the General Tax Code that the profits made by a civil company that has not opted for the tax regime of capital companies are subject to income tax, in the hands of the partners for the portion corresponding to their rights in the company . In application of this principle, the partners being the only legal taxpayers of income tax in a SCI that has not opted for corporate tax, it cannot be subject to a collection notice . The fact that the tax is calculated on the share of social profits corresponding to the partners' rights in the company, and not on the amounts actually paid to them, does not violate either the principle of equality before public burdens or the right to property, even in the event that one of them has misappropriated these profits, as long as this basis is objective and rational .

Finally, like any partnership, the civil company is characterized by the existence of a strong intuitus personae among the partners, which requires following an approval procedure when a partner wishes to enter the share capital or transfer their shares . A reinforced variant of affectio societatis, it is assessed at the time of the company's formation  and may result from a manifestation by the partners of their intention to associate in a joint enterprise aimed at the real estate development of land owned by one of them, through a definitive commitment, which includes the obligation to participate in the company's debts . The disappearance of any agreement among the partners of the civil company leads to the dissolution of the company .

See, for applications, Cons. d'Et., 22 January 2020, LawLex202300009393JBJ; 20 July 2021, LawLex202300009396JBJ.

Cons. d'Et., 11 April 2018, LawLex202300009394JBJ.

Cons. d'Et., 25 September 2019, LawLex202300009395JBJ.

Cass. 1re civ., 24 October 1978, LawLex202300009644JBJ. - See also Cass. com., 3 March 2021, LawLex202200003082JBJ, holding that the absence of agreement among the partners on the corporate purpose of the future company and a lack of shared vision regarding the potential use of the real estate to be acquired and operated demonstrates their lack of affectio societatis and results in the invalidity of the promise of company formation.

Cass. com., 11 June 1979, LawLex202300009397JBJ. - Cf. similarly, Cass. com., 10 February 2015, LawLex202200003086JBJ, considering that a partner of a real estate civil company (SCI), whose sole purpose is the acquisition of real estate intended for the common residence of the partners, who has assumed responsibility for property taxes, demonstrates the reality of their affectio societatis, even in the absence of timely contributions.

Cass. 1re civ., 16 October 2013, LawLex202200003087JBJ, holding that dissensions between notary partners of an SCP, unresolved by an attempt at mediation, which lead to a breakdown in the communication necessary for the operation and development of the company's business, as well as damage to its reputation, indicate a disappearance of the affectio societatis justifying its dissolution; Cass. 3e civ., 17 December 2020, LawLex202300002428JBJ, emphasizing that the inability of the partners, in litigation, to reach an agreement to make a decision, such as the appointment of an accountant, given the equality of votes and the necessity of a general meeting decision for any expenditure exceeding one hundred and fifty euros, illustrates the loss of the affectio societatis and justifies the dissolution of the company.

Company Law (en cours)

653. Intuitu personae

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

653. Intuitu personae

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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