Cass., Com., November 18, 2020, No. 18-23.239 – Société SCPF v. R.
In a ruling issued on November 18, 2020, the Court of Cassation reiterates that when a contract is concluded with a company " in the process of registration represented by [a natural person who is a partner / manager]", only the company, although it does not yet exist, is bound and not the natural person who signed it .
It is important to point out that this contract, concluded by a non-existent company, is absolutely null and void, incapable of being rectified, in accordance with consistent case law.
To take action against the individual signatory and not the company itself, the other party to the contract must demonstrate that:
- The said natural person acted " in the name " or " on behalf of" the company being formed (i) ;
- The said company did not, after its registration, take over the contract in question (ii) .
Once the two aforementioned conditions are met, the other party to the contract can unambiguously take action against that individual under the contract. It is therefore essential to pay particular attention to the wording of contracts concluded with companies in the process of being formed and to specify, where applicable, that the signatory individual is acting " in the name and/or on behalf of a company in the process of being formed."
