We have already seen the characteristics of the LLC, which requires the contribution of several partners. In this fact sheet, we will discuss the criteria to be met to become a partner of a SARL.
Here is an article that explains everything you need to know to become a partner of an LLC.
Observations on the constitution of an LLC
The partners' agreement
To form an LLC, it is essential that the partners' agreement be authentic and free from any form of defect. The partners must have the conscious will to associate without any defect in their consent.
Use of a nominee
A nominee is a person who stands in for another who does not intend to be directly associated, for various reasons. It is possible to use this practice to found an LLC, but on condition that it is not done with the aim of cheating. However, this process entails risks, and may subject the partners to criminal penalties, in particular penalties for false declaration on the distribution of shares between the partners, under penalty of six months in prison and a fine of 9 euros.
Contributions to the LLC
To join in a SARL, it is necessary to provide contributions made up of goods (sums of money, tools, equipment, etc.). In return, the partner obtains shares which are proportional to the amount of his contributions. It is also possible to make contributions in industry, but they do not contribute to the capitalization of the SARL.
The number of partners
A SARL can be set up by a single partner, which makes it an EURL (individual company with limited liability), and cannot accommodate more than 100 partners. It is the only limited liability company for which a maximum number of partners is defined by law. If this ceiling is exceeded, the SARL is dissolved within one year from the date on which the threshold was exceeded. To remedy this, it is possible to:
- reduce the number of partners,
- or transform the SARL into another form of company that can bring together more than 100 partners (an SAS for example).
SARL Partner Capabilities
The partners of an LLC can be individuals or entities. Individuals must be able to become partners and there are two limits to this: the case of the young person (discussed in the next section) and that of the incapable adult.
Three types of incapable adults are to be distinguished: the adult placed under guardianship, under curatorship and under judicial safeguard.
The case of an adult under guardianship
Nothing prohibits an adult under guardianship from becoming a partner in an LLC, but he cannot subscribe to shares personally, his guardian must act on his behalf. A special procedure must be followed for the subscription depending on the nature of the contributions offered to the future SARL.
The case of an adult under curatorship
Unlike an adult under guardianship, an adult under curatorship can act personally to carry out certain acts determined by court decision. For the others, the assistance of the curator is required.
In addition, the acts undertaken by the person of full age under curatorship can be called into question by means of an action for nullity or rescission for lesion.
The case of an adult under legal protection
A person of full age under legal protection retains the exercise of his rights. He can carry out acts personally unless an agent has been appointed for the administration of his property, or a court decision has appointed one.
The safeguard of justice also makes it possible to contest acts contrary to the interests of the major passed during the safeguard of justice, by using the action in rescission for lesion or reduction for excess.
Can a child be a partner of SARL?
When it comes to a minor associating in a SARL, it is necessary to make a distinction between the case of an emancipated child and that of a non-emancipated minor.
The case of the emancipated minor
The emancipated minor has the same rights as an adult to perform the acts of civil life, with the exception of the quality of entrepreneur. This means that an emancipated child can be associated with an LLC.
How can a child become emancipated?
A child can be emancipated in two ways:
- by getting married (emancipation by right)
- or by court order.
In the latter case, the child must be at least 16 years old and the application must be filed by the parents, one of them or by the family council (depending on the situation). The child cannot apply for emancipation himself.
The case of the unemancipated minor
A non-emancipated minor cannot directly become a partner in an LLC. To do this, the legal representative of the minor must subscribe to the shares in his name.
Can a non-national be a member of a SARL?
An individual from a Member State of the European Union can become a shareholder of a SARL without having to hold a residence permit.
For non-nationals, the obligation to hold a business card is canceled from the order of March 25, 2004. However, they will have to hold a resident card or a temporary residence permit to become a shareholder of an LLC.
Implications of a marital union on an LLC
when married person wishes to become a partner of a Limited Liability Company (SARL), certain points must be taken into consideration when contributions are made with common property or funds.
The spouse of the partner who has purchased shares using community property may require the status of partner of the SARL for half of the shares subscribed. Thus, the spouse must be informed of the operation before it is implemented in order to be able to assert this right.
There are three possible situations with regard to the right to claim:
- if the spouse renounces in writing to be a partner of the SARL, this decision is final;
- if the spouse requests it directly, the other partners can accept it or not;
- if the spouse does not express himself, he can always later claim the status of partner. If the statutes of the SARL include an approval clause in this case, the partner does not participate in the vote.
If the partner wishes to make a contribution in kind of shares, real estate or business belonging to the community, he must obtain the consent of both spouses, under penalty of nullity of the transaction. bring.
In the case of partners bound by a Civil Solidarity Pact (PACS), they have in principle the free right to subscribe to shares in an LLC without any formalism provided that the PACS does not contain any contrary clause.
On the other hand, whatever the matrimonial regime of the person concerned, no formality is necessary to subscribe to shares financed by personal contributions not belonging to the community.
Do you want to create your LLC? Be accompanied by one of our partners: I create my SARL online!
To read also on the subject of the creation of an LLC:
- How long can an LLC last?
- What can be the corporate name of an LLC?
- How to define the corporate purpose of a SARL?
- How to choose the registered office of an LLC?
- What is the procedure for appointing the manager of an LLC?
- What are the steps to follow to form an LLC? ?
- What does the legal announcement of the creation of a SARL contain? ?
