You’ve been waiting to read it on the beach this summer, and here it is: the June 18, 2025 ruling by the Court of Cassation on a thrilling subject…: the reversal of an act performed during the company’s formation period.
And I know what you’re thinking: “But come on! This subject has already been addressed recently!” »
And you’re absolutely right! The Court of Cassation did indeed issue a rather innovative ruling on November 29, 2023, overturning several years of case law and putting a stop to the well-established use of a formula that we had all (or almost all) become accustomed to.
We obviously commented on it at the time in a fascinating article that you can find (again) here.
Here’s a quick flashback to refresh your memory! In 2023, the Court relaxed its case law regarding contracts entered for a company not yet registered in the trade and companies register (the famous “acts performed by a company in the process of being formed”).
The Court thus indicated that the mere failure to include the standard phrase “acting on behalf of and for the account of company X, currently being formed” could not in fact render the acts concluded null and void. The judges hearing the case are now responsible for assessing the parties’ intentions at their discretion.
In 2025, the Court did not intend to reverse this relaxation. However, it nevertheless pointed out that the parties’ intention to conclude an act in the name and on behalf of a company in the process of being formed did not in itself constitute a takeover of the act.
The Court thus ruled that:
« The assumption of an act performed during the formation period of a company cannot result solely from the agreement or the will, assuming they are established, of the parties to substitute the company for the person who entered into the commitment, but must satisfy the conditions required by the laws and regulations specifically governing the terms and conditions for assuming commitments entered into in the name or on behalf of a company in formation. »
Indeed, in accordance with the Commercial Code and Decree 78-704 of July 3, 1978, acts performed on behalf of a company in formation must be expressly taken over by the company. Failing this, the persons who acted remain jointly and severally liable indefinitely.
In practical terms, there are three ways to take over:
- Inclusion in the appendix to the articles of association of a statement indicating the commitment resulting from the act presented to the partners before the articles of association are signed;
- Regularization prior to the signing of the contract of a mandate to perform the act on behalf of the company;
- The decision of the partners after registration to take over the said deed.
It should be noted that the clause stipulating that the registration of the company would automatically result in the takeover of the contract by the company was ineffective in allowing the takeover (Cass. 3rd civ. 15-10-2015 no. 13-24.355).