Cass., Com., November 18, 2020, n°18-23.239 – Société SCPF c/ R.
Under the terms of a judgment delivered on November 18, 2020, the Court of Cassation recalls that when a contract is concluded with a company " in the process of registration represented by [an associated natural person / manager]", only the company, although that it is still non-existent, is engaged and not the signatory physical person .
It is important to specify that this contract, concluded by a non-existent company, is subject to absolute nullity, insusceptible to regularization and this, in accordance with constant case law.
To act against the signatory natural person and not the company itself, the contracting party must demonstrate that:
- 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) .
As soon as the two aforementioned conditions are fulfilled, it is without ambiguity that the co-contracting party can act against this natural person under the contract concluded. Particular attention should therefore be paid to references to contracts entered into with companies in the process of being formed and to specify, where applicable, that the natural person signing is acting " in the name and/or on behalf of a company in the process of training”.
