Bankruptcy Law

The judgment opening the receivership makes the unpaid amount of the share capital immediately payable . In addition to the need to mobilise all possible means of financing the company's activity during the observation period, this provision restores a degree of equality between the debtor's creditors and partners, by requiring them to contribute jointly to the company's receivership.
It is up to  …

Release of the entire share capital

The judgment opening the receivership makes the unpaid amount of the share capital immediately payable . In addition to the need to mobilise all possible means of financing the company's activity during the observation period, this provision restores a degree of equality between the debtor's creditors and partners, by requiring them to contribute jointly to the company's receivership.

It is up to the legal representative to give formal notice to the defaulting partner or shareholder to pay the amount of unpaid share capital , by registered letter with acknowledgement of receipt. Based on the partnership agreement, the agent's action is subject to the five-year limitation period set out in Article 2224 of the Civil Code, which begins on the date of the judgment opening the insolvency procedure, which renders due and payable the contribution claim held by the debtor company against its shareholders . Where a receivership plan is adopted, the commissionner for the enforcement of the plan, who does not represent the debtor, may not take the place of the company's legal bodies to require a shareholder to pay up his contributions .

Only a person whose status as a partner or shareholder has been established may be required to pay up the outstanding share capital . Identifying the debtor of the obligation to pay up the contributions may prove to be a source of difficulty in the event of a transfer of shares prior to the action of the legal representative. Article L. 228-28 of the Commercial Code partly circumvents this obstacle for capital companies by providing that a shareholder who sold his shares less than two years prior to the action of the legal representative remains jointly and severally liable, with the transferees, for payment of the unpaid share capital . On the other hand, in the absence of an equivalent provision for limited liability companies and in the absence of a contractual provision to the contrary, the obligation to pay up the share capital does not fall on the transferee of shares in a limited liability company, but on the transferor, since such an obligation, inherent in the initial subscription for the shares, constitutes a debt to the company independent of the transfer . Lastly, a legal representative may not request a minor to pay up a contribution that has become null and void as a result of his incapacity .

To avoid their obligations, partners called upon to pay up the share capital regularly invoke the set-off of this debt against the positive balance of their partner's current account. However, the debt in respect of the payment of share capital and a partner's current account claim do not arise from the same contract and therefore do not constitute related claims that can be set off . On the other hand, a shareholder's debt in respect of the payment of subscribed but unpaid capital may become due and payable, and therefore subject to legal set-off, upon a decision by the company's governing body demanding payment . A shareholder cannot claim to have paid up his contributions by offsetting them against the credit balance of his shareholder current account if the Board of Directors has not recorded any payment and the transaction has not been taken into account in the company's accounts . On the other hand, the set-off is acquired if it is established that the payment made into the shareholders' current account was intended to settle the debt for the payment of capital and that the allocation to this account was the result of an error by the chartered accountant . A shareholder invoking set-off is required to provide proof of his claim for repayment of his debt and of its allocation to the payment of his debt, before the insolvency procedure is initiated .

Lastly, the application of Article L. 624-20 of the Commercial Code cannot render the unpaid portion of the share capital immediately payable where a clause in the articles of association has provided for payment in instalments . However, the payment period requested by a shareholder who has been given formal notice to pay the outstanding portion of the share capital may not exceed twenty-four months, in order to expedite the company's insolvency procedure .

C. com., art. L. 624-20, applicable to receivership by reference to art. L. 631-18.

CA Reims, 20 September 2016, LawLex202200003967JBJ (LJ).

CA Pau, 29 March 2018, LawLex202200003966JBJ (LJ).

CA Pau, 21 January 2021, LawLex202200003818JBJ (LJ).

CA Poitiers, 17 October 2017, LawLex202200003812JBJ (LJ).

Cass. com., 1 July 2020, LawLex202200003810JBJ (LJ).

Cass. com., 12 October 2004, LawLex202200004115JBJ (RJ).

CA Riom, 19 September 2018, LawLex202200003819JBJ (LJ) ; CA Riom, 26 June 2019, LawLex202200003964JBJ (LJ).

CA Riom, 26 June 2019, LawLex202200003964JBJ (LJ).

CA Paris, 16 February 2021, LawLex202200003965JBJ (LJ).

CA Montpellier, 29 January 2013, LawLex202200002929JBJ (LJ).

Bankruptcy Law

536. Release of the entire share capital

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

536. Release of the entire share capital

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise