Actions performed on behalf of the company being created

Actions taken on behalf of the company at formation refer to the steps taken by the future manager and partners before the company becomes a legal entity. After all, at the time of formation and not yet being registered, the company has no status. Therefore he cannot, among other things:

• Recruit staff;
• Carry out banking operations;
• Conclusion of loan agreements.

However, these actions can be performed by the founders of the company, and then resumed before signing the charter when creating the company, after signing the charter, or after registering the company. For each of these opportunities, a number of conditions and criteria must be met.

What actions are performed on behalf of the company upon formation?

It is necessary to know what an emerging company is before considering the activities that are carried out on its behalf.

What is a company in its formation stage?

Every society is initially a society in formation, that is, in the process of becoming. These legal terms refer to organizations that are pending registration and therefore have no legal existence. In other words, they are not yet legal entities.

The latter is acquired when the company becomes a legal entity after registration and obtaining SIRET (9 digits) and SIREN (13 digits) numbers. Despite the absence of a legal entity, it remains possible to perform actions on behalf of the company.

What do we mean by “acts done on behalf of a company for the purpose of formation”?

Acts performed on behalf of a company at incorporation mean transactions performed by partners or shareholders before the legal formation of the company.

Indeed, since the company is not yet a legal entity, it is not able to either assume obligations or enjoy certain actions, such as:

• Opening his bank account;
• Payment of legal costs;
• Publication of advertisements in the journal of legal advertisements;
• Purchase of equipment and materials for office automation;
• Signing a commercial lease agreement, etc.

You can take over actions performed on behalf of the company if certain conditions are met.

Conditions for accepting actions taken to establish a company

Resumption of these actions is possible if two conditions are met:

Firstly, the acts must necessarily indicate “agit pour le compte de la society X en formation " This provision allows the contracting parties to be informed that the company is not yet a legal entity and that a change in the debtor party may occur in the future.

Secondly, the actions must be taken during the formation of the company.

The formation period of a company begins from the moment the founders undertake to form a company and ends when the latter is registered.

However, the beginning of the training period (called the constitutive period) causes some difficulties:

• Administratively, it begins when an action is developed that is contrary to third parties;
• Legally, case law considers that it begins during the negotiations of the company's founders.

Why include in the charter actions performed on behalf of the company in the form of formation?

Articles 1843 of the Civil Code and L. 210-6 of the Economic Code establish that actions performed on behalf of the company during formation bear the legal responsibility of the persons who committed them until these actions are accepted by the company as a legal entity. Typically, the people who carry out these activities are partners and future leaders.

As a result of this provision, if acts performed on behalf of the company being created are not included, the latter will not be liable for those acts before the law.

For example, in the event of a debt dispute, the company will not be held liable. Claims will only be made against contracting parties.

To avoid such situations, these actions must be transferred.

Some actions taken during the registration period of the company cannot be taken over. Thus, the jurisprudence is aimed at sensitive obligations and claims, as well as lawsuits.

What actions are we talking about?

Three types of documents can be issued on behalf of the company:

• Actions taken before signing the charter;
• Committed after signing the charter;
• And finally, those that are carried out after the company is registered.

Actions taken before signing the company's charter

The communication of these actions can be done directly through the summary report. This document is intended to list all activities performed, as well as the associated costs. It will be added to the charter and thus ratified once it is signed.

Of course, it must describe in detail the actions performed on behalf of the company being created (nature, amount, etc.), and must indicate the identity of each of the contracting parties.

In addition, in order for the transfer to be effected, the words “the signing of the articles of association and the registration of the company shall entail the automatic and retroactive assumption of the obligations undertaken on its behalf at the time of formation and annexed to these articles of association” must be stated in the document.

Actions taken after signing the company charter

This category includes actions taken between the signing of the articles of association and the registration of the company. The transfer will only be possible if, in the articles of association or by a separate deed, the future partners have authorized one of them or a legal representative to undertake obligations on behalf of the company.

In this case, the mandate must clearly define the actions to be performed, and the agent must strictly adhere to them. Otherwise the transfer will not be possible.

Actions taken after company registration

If the company has not decided to accept cases by commission or by filing a statement of those cases, it can always do so after registering the company. According to this option, a decision will be made at the next general meeting for the purpose of taking actions taken on behalf of the company being created. In principle, it is voted for by the majority of shareholders, unless otherwise provided by the articles of association.

Thus, there are three ways to transfer actions performed against a company:

• Legislative regime: adding to the charter a statement of actions taken, indicating that registration will automatically lead to the transfer of these actions;
• Power of attorney mode: partners appoint a person (partner or future manager) to perform actions;
• Decision-making at the general meeting: the partners, by a majority vote at the next general meeting, decide on the transfer of actions taken when creating the company.

How to draw up an act on actions performed on behalf of the company during formation?

The act of completion must necessarily contain the following information:

• Company name;
• Legal form;
• Surnames and names, address and quality of the counterparties of the act;
• Authorized capital;
• Legal address;
• Subject of the agreement;

The mention of “Company registration is automatically worth the renewal of the action carried out on behalf of the company of formation.”

Samples of acts of commission for the company being created can be found on the Internet. It is recommended to use it and insert information related to your company.

Another way is to contact a professional. The invaluable assistance of this specialist will ensure the legality of the action and prevent refusal.

Source: https://www.legalplace.fr/guides/actes-accomplis-compte-societe-formation/

https://www.economie.gouv.fr/entreprises/comment-transferer-siege-social