In order to set up a business, future partners or shareholders will have to undertake actions and incur expenses in favor of the future entity. Thus, they will have to pay the costs of publication in the journal of legal announcements, open a professional bank account, buy equipment and pay court fees. The problem is that these acts are not carried out by the company which does not yet exist, but by the founders. However, it is possible that the company takes over all of these acts during its registration, which is called the resumption of acts carried out in favor of the company being formed.
In order to incorporate a company, investors or shareholders must carry out procedures and expenses for the benefit of the future legal person. This may include costs for publication in the journal of legal notices, opening of a professional bank account, purchase of equipment and court costs. The problem is that these acts are not carried out by the company which is not yet created, but by the founders. However, it is possible to do take over these acts by the company at the time of its registration, which is called the takeover of acts performed on behalf of the company in formation.
Requirements for acts to be repossessed
The comprehensive document must clearly indicate that the deed was drawn up “in the name of the company…” or “on behalf of the company…” in order to be validly taken over.
You have been warned! : if this mention is not specified, the document is always attributed to the person who produced it.
The acts that can be resumed are those that have been made during the formation of the company.
Company formation period:
- it begins from the moment the founders decide to form a company,
- and it ends when the company registers.
In practice, formation begins when founders take concrete steps that demonstrate their intention to form a company. For example, the deposit of cash contributions in a blocked account and/or the signing of the articles of association. Jurisprudence has actively defined the beginning of training.
The tax administration considers that formation begins when an enforceable act is performed. From a legal point of view, the assessment is broader and depends on the circumstances. It has already happened that the beginning of the formation is recognized from simple negotiations.
Please note: : even if these acts can be taken over by the company, it is advisable to only have the company take over those which are carried out exclusively in its interest (some founders are sometimes tempted to add other expenses, etc.).
Recovery of commitments made in the name of the company
There are three ways to recover commitments made on behalf of the company being formed:
- attachment of a list of commitments made on behalf of the company in formation to the statutes and mention that the registration will lead to an automatic repossession;
- assign a mission to a person to carry out these acts ;
- or, after registration, decide to recover the commitments made on behalf of the company in formation by decision of the members or shareholders.
Include a list in the articles of association
A list of commitments made on behalf of the company being formed must be appended to the company's articles of association. It lists all the expenses incurred by the future partners or shareholders before the registration of the company and the names of the persons who incurred the expense(s).
The signing of the statutes will imply the taking into account of these commitments by the company as soon as it is registered in the RCS (Register of Commerce and Companies).
Assign a mission to a person to perform the acts
By choosing this option, the future partners must, in the articles of association or by separate document, delegate to one or more of them, or to the legal representative if he is not associated, the right to make commitments on behalf of the future company.
However, only the acts carried out between the moment of the signature of the statutes and that of the registration of the company can be taken into account in this way.
Have the deeds recovered by decision of the partners or shareholders
Finally, after the registration of the company, the partners may decide in a general meeting in the ordinary form to take over, in the name of the company, acts which have been carried out on its behalf before its registration.
Unless there is a contrary clause in the articles of association, this decision is taken by a majority of the partners.
Impact of company assumption of contracts
Associates or shareholders who have entered into contracts taken over by the company may be released from any obligation with regard to the contractual partner, unless they personally undertake to guarantee the execution of these acts.
Commitments entered into before the registration of the company are deemed to have been entered into by the company from the outset.
Consequences of acts not retained
If the actions carried out on behalf of the company being formed are not recognized by it, they remain the responsibility of the persons who have directly concluded them or who have given a mandate to carry them out.
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