On the occasion of a transfer, the question of the re-signature of the mandates regularly arises. What you need to know with Caroline Dubuis Taleyrach lawyer
The question actually arises for all changes of agents, whether this change results from a merger Universal Transmission of Heritage (TUP), a sale of goodwill, the transfer of a portfolio, a contribution, a management lease or a demerger. Regardless of the legal nature of the transaction. The Court of Cassation has just given a new illustration of this with regard to the trustee’s mandate following a merger-absorption. I suggest that you take stock of the re-signing of mandates by dealing successively with the trustee mandate (I), then the sales, rental and management mandates (II) before addressing what needs to be do (III).
I – The trustee mandate
The Supreme Court has just recalled (Cass. Civ. 3rd, January 28, 2021, No. 19.22714) that the merger-absorption of two companies does not entail the transfer of trustee mandates. This is an opportunity to remember that the different regulations applicable to a legal transaction can overlap or be contradictory. In such cases, it is most often the special regulations (Loi Hoguet and law on co-ownership) that take precedence over the other rules (civil law, company law and commercial law). In terms of trustee, the question arises in particular during the reorganization of groups: merger, merger-absorption, TUP during which the terms of the transfer of mandates are not always taken into account, due in particular to a compartmentalisation between the aspects so-called “corporate” and business aspects. As this is a regulated activity, it is necessary to have a global vision. This is what the Court of Cassation reminds us.
What is the pitch of the Supreme Court ruling? To obtain the cancellation of a meeting of co-ownership, one of the co-owners argued that the trustee who had convened the meeting had no mandate. A meeting of co-owners had indeed mandated a company A but the latter had disappeared following a merger-absorption for the benefit of company B which had convened the meeting of co-owners.
The court judges unsurprisingly “that the law of July 10, 1965, excluding any substitution of the trustee without a vote of the general meeting of co-owners, does not allow a company holding a mandate of trustee to divest the co-owners of their power exclusive right to appoint the trustee by means of a merger-absorption operation resulting, after the disappearance of its legal personality, in replacing it with the acquiring company, a separate legal person”.
This solution is classic with regard to a fusionabsorption (in particular Cass. Civ. 3rd, February 29, 2012, n° 10-27259, Cass. Civ. 3rd, November 13, 2012, n° 11-23121) or a management rental (Cass. Civ. 3rd, November 18, 1997, No. 96-12303) but it is identically transposable to all other legal operations (contribution, merger without disappearance of the legal person, split, etc.) resulting in a change of the designated person.
Conversely, when the legal entity does not change, there is no problem, even if the company changes its corporate form and name (Cass. Civ. 3rd, April 28, 2011, No. 10-14298). It’s a bit like when a woman gets married: even if she chooses to change her name, it’s still the same woman.
For a company, if you have the doubt of a change of agent, a very simple criterion can be useful to you: the number of the Register of Commerce and Companies. If the number has not changed, there is no change of agent.
II – The management, sale and rental mandate
For management, sale or rental mandates, the question of the re-signing of mandates arises in the same way in the event of a change of agent, regardless of the legal transaction at the origin of this change: sale, contribution, merger, lease management, TUP (Article Sale, merger and transfer of mandates by Me Caroline Dubuis-Talayrach, published in the Agency’s Journal of September 2018, page 58). Again this is a point that is often underestimated before the operation is carried out.
The most usual clauses of approval and substitution, if they are satisfactory on the civil level, do not regulate all the subjects in particular with regard to the Hoguet regulations (law n ° 70-9 of January 2, 1970 and Decree n ° 72 -678 of July 20, 1972) concerning the holding of mandate and the formality of registration. Yet the solutions exist.
III – What to do?
You may be tempted to think that the question of the transfer of mandates does not concern you because you will not be selling your business or a portfolio of clients but the shares of your company and, moreover, that you are not planning any reorganization. companies or activities.
However, it is common for the legal transaction initially envisaged to be reviewed, in particular for accounting, legal, tax or banking reasons. Not to mention that life is full of unexpected events. It is therefore prudent to prepare well for transferability
of your mandates.
Each mandate has its own solution, but one rule is common to all: the need to anticipate. The transfer of trustee mandates will be done differently from other mandates (management, sale, rental) because it is necessary to take into account the regulations on co-ownership. For management, sale and rental mandates, a common or differentiated solution may be implemented depending on the operational process chosen.
In general, it is advisable before a sale or merger operation to consult an advisor specializing in Hoguet regulations, business law and company law. He will give you visibility on the progress of the operation and will be able to manage it in full (transfer, merger and regulatory aspects) or will advise you specifically on the Hoguet law aspects and the transfer of mandates.
It is likely that certain clauses of your mandates will have to be modified. However, these modifications and the harmonization of your contractual fleet will take time, which is why you must once again anticipate.
The paradox is that when clients have the time they need to update their mandates, it’s not a hot topic; but when the subject becomes one, it is often too late to implement certain measures. This will certainly not be an obstacle to the completion of the operation, but it will be carried out under different conditions from what they could have been.
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