ON COMPANIES AND PARTNERSHIPS
- The French Code of Commerce and Most Usual Commercial Laws , 1880 [Google Books]
TITLE I. OF “Sociétés en Commandite” DIVIDED INTO SHARES. ARTICLE 1. “Sociétés en commandite” cannot divide their capital into shares or coupons of shares of less than one hundred francs, when the capital does not exceed two hundred thousand francs, and of less than five hundred francs when the capital exceeds the above amount. They are not definitely formed until the whole of the capital has been subscribed, and at least one quarter of each share actually paid up. The aforesaid subscription and payments shall be sworn to by the manager before a notary. To the deposition shall be annexed—the list of subscribers, a statement of the amount paid up, the agreement under which the stock company is formed, executed in duplicate, if the same be “sous seing privé;” and a certified copy thereof, if it be a notarial deed, executed before a notary other than the one before whom the deposition is made. The deed “sous seing privé,” whatever may be the number of parties thereto, must be executed in duplicate, one of which shall be annexed, as explained in the preceding paragraph, to the deposition setting forth the subscription of the capital and the payment of the one fourth, and the other of which shall be deposited at the office of the “Société.” ARTICLE 2. The shares or share coupons are negotiable after the payment of one fourth. ARTICLE 3. A stipulation may be made, but it must be set forth in the agreement under which the company is formed, that the shares or share coupons may, after one half has been paid up thereon, be converted, by a resolution of a general meeting, into shares payable to bearer. Whether the shares remain payable to order after such resolution, or whether they become converted into shares payable to bearer, the original subscribers who transferred the same, and the transferees to whom such transfers were made, before the payment of the one half, remain liable for the whole amount payable on the shares for the space of two years from the resolution of the general meeting. ARTICLE 4. When a member contributes to the concern an apport which does not consist of cash, or which consists of a personal privilege, the first general meeting shall estimate the value of the apport and the personal privilege contributed. The company is not definitely constituted until after the approbation of the apport, by a resolution of anothergeneral meeting convened for the purpose. The second general meeting cannot approve the same until a report has been printed and placed at the disposal of the shareholders five days at least before the said meeting. The resolutions may be passed by a majority of the shareholders present. This majority must consist of one-fourth of the shareholders, and represent one-fourth of the capital paid up in cash. Members who have brought in an apport or personal privilege to be submitted to the examination of the meeting, cannot vote. In default of approbation the Articles of Association become of no effect as regards all parties. Approbation as above forms no obstacle to the subsequent institution of proceedings in case of fraud. The clauses of the present article relating to the approval of the “apport " not consisting in cash, are not applicable in the case of a company to which the said “apport" is made, when such company is exclusively composed of parties who were already joint-proprietors thereof. ARTICLE 5. A committee of inspection composed of at least three shareholders shall be appointed in every société en commandite par actions. This committee shall be appointed by the general meeting of shareholders immediately after the definite formation of the société and before the commencement of its business. The committee is subject to re-election at the periods and upon the conditions set out in the articles of association. In any case, however, the first committee cannot act for more than one year. ARTICLE 6. The first committee must, immediately upon its appointment, examine if all the provisions contained in the preceding articles have been complied with. ARTICLE 7. Every société en commandite par actions, constituted contrary to the provisions of Articles 1, 2, 3, 4 and 5, of the present law shall be void and of no effect as regards the parties interested therein. This section cannot, however, be set up as a defence against third parties. ARTICLE 8. When the Articles of Association are annulled, pursuant to the preceding Article, the members of the first Committee of Inspection may be declared responsible, together with the manager, for all damages resulting therefrom to the Company or to third parties. The same liability attaches to the members whose “apports” or personal privileges shall not have been approved pursuant to Article 4. ARTICLE 9. The members of the Committee of Inspection incur no responsibility in relation to acts of administration or the results thereof. Each member of the Committee of Inspection is liable for his own default in relation to the carrying out of his duties according to the general rules of law. ARTICLE 10. The members of the Committee of Inspection shall verify the books, cash bills, drafts, and other securities of the société. They shall draw up every year for the general meeting a report, in which they shall point out any irregularities or omissions which they may have found in the inventories, and state, should there be occasion, what difficulties exist as to the payment of the dividends proposed by the gérant. The shareholders cannot be called upon to reimburse dividends which they may have received, unless such dividends have been paid without drawing up an inventory, or without reference to the position of affairs as shown by the inventory. Actions for return of dividends as above are barred after the lapse of five years from the day fixed for the distribution of the dividends. Limitations which have commenced to run at the time of the promulgation of the present law, and which, according to the old laws, do not expire within five years therefrom, shall come within the present law, and bar actions within the time prescribed therein. ARTICLE 11. The Committee of Inspection may call a general meeting, and pursuant to resolution passed thereat, may wind up the Company. ARTICLE 12. Fifteen days at least before the date of the general meeting every shareholder may, either by himself or his agent, inspect, at the principal office of the Company, the balance-sheet, inventories, and report of the Committee of Inspection. ARTICLE 13. The issue of shares or share coupons of a société constituted contrary to the provisions of Articles 1, 2, and 3 of the present Law, is punishable by a penalty of from five hundred to ten thousand francs. The same penalties are applicable as follows:—To the manager who commences operations before the Committee of Inspection enter upon their functions; parties who, by representing themselves as holders of stock which does not belong to them, have created a fictitious majority at a general meeting, without prejudice to any action for damages to which they may be liable towards the société or third parties; shareholders who have sought to make a fraudulent use of their shares. In the cases provided for in the two preceding Articles, the penalty of imprisonment of from fifteen days to six months may be inflicted. ARTICLE 14. The negotiation of shares or of share coupons, the value or form of which are contrary to the provisions of Articles 1, 2, and 3 of the present law, or in respect of which the payment of one fourth has not been made pursuant to Article 2 above mentioned, is punishable by a penalty of from five hundred to ten thousand francs. Parties who have participated in the negotiation, or issuing of the said shares, are punishable by the same penalties. ARTICLE 15. The following are liable to the penalties prescribed by Article 405 of the Penal Code, without prejudice to the application of that Article to all acts constituting the misdemeanor of “escroquerie” (swindling):—1st. Parties who, under pretence of subscription or payment of calls, or by fraudulent publication of subscriptions or payments which have not been made, or by other fraudulent acts, have obtained, or sought to obtain subscriptions or payments upon shares; 2nd. Those who, in order to attract subscriptions or payments, have fraudulently and falsely published the names of persons as being or about to become connected with the concern in any capacity whatever. 3rd. The géran's who, without drawing up inventories, or by means of false inventories, have paid fictitious dividends to the shareholders. The members of the Committee of Inspection are not civilly responsible for offences committed by the managers. ARTICLE 16. Article 463 of the Penal Code is applicable to the cases mentioned in the three preceding Articles. ARTICLE 17. Shareholders representing one-twentieth at least of the capital can, in the common interest, depute at their expense one or more agents to institute suits against, or defend suits by, the managers or Committee of Inspection and to represent them in courts of justice and otherwise, without prejudice to the right of each shareholder to bring actions in his own name. ARTICLE 18. Companies existing before the Law of 17th July, 1856, and which have not complied with Article 15 of this Law, must within six months appoint a Committee of Inspection in conformity with the preceding provisions. In default of the appointment of the Committee of Inspection within the period above mentioned, every shareholder has the right to have the company dissolved. ARTICLE 19. Sociétés en commandite par actions, formed previously to the present law, which can by their statutes be transformed into Sociétés anonymes authorised by the Government, can be converted into Sociétés anonymes upon the conditions specified in Chapter II. of the present Law, by complying with the clauses contained in the statutes relating to the transformation. ARTICLE 20. The Law of the 17th July, 1856, is hereby repealed. TITLE II. OF Sociétés Anonymes. ARTICLE 21. Sociétés anonymes can henceforward be formed without the authorisation of the Government. They can be constituted, whatever may be the number of members, by a deed sous seing privé, executed in duplicate. Sociétés anonymes are subject to the provisions of Articles 29, 30, 32, 33, 34, and 36 of the Code of Commerce, and to the enactments contained in the present chapter. ARTICLE 22. Sociétés anonymes shall be conducted by one or more managers appointed for a certain time; they are revocable, whether salaried or otherwise, and chosen from amongst the members. These managers may elect a director from amongst them, or if the statutes permit it, appoint a person unconnected with the société, but for whose acts they remain responsible. ARTICLE 23. No company can be constituted with a number of members less than seven. ARTICLE 24. The provisions of Articles 1, 2, 3 and 4, of the present law apply to Sociétés anonymes. The deposition required of the manager by Article 1 shall be made by the founders (promoters) of the société anonyme, and shall be submitted, together with the documents in support thereof, to the first general meeting, which shall examine into its correctness. ARTICLE 25. A general meeting shall be, in all cases, convened by the promoters subsequent to the deposition proving the subscription of the capital, and the payment of the fourth in cash. This meeting appoints the first directors; and also, for the first year, the auditors mentioned in Article 32, infra. The directors cannot be appointed for more than six years; they are re-eligible, unless it be provided to the contrary. They can, however, be appointed by the Articles of Association, with a formal stipulation that their appointment shall not be submitted to the approval of the general meeting. In the latter case they cannot be nominated for more than three years. The report of the meeting must set forth that the directors and auditors present at the meeting have accepted the offices tendered. The formation of the Company dates from such acceptance. ARTICLE 26. The directors must own a certain number of shares provided for by the statutes of the Corporation. These shares shall constitute a security against the acts of the board of directors, even as regards acts appertaining personally to any one of the directors. They shall be made out to the name of the owner, and be inalienable, marked with a stamp denoting their inalienability, and deposited with the Company. ARTICLE 27. A general meeting shall be held, at least once in each year, at the time fixed in the Articles of Association. The statutes determine the number of shares that must be held, either as holder or as agent, for admission to the meeting, and the number of votes belonging to each shareholder, in proportion to the number of shares held by him. Nevertheless, in the general meetings convened to verify the “apports,” to appoint the first directors, and to examine the depositions of the promoters of the Society, prescribed in the second paragraph of Article 24, every shareholder, whatever may be the number of shares he possesses, may take part in the meeting with the number of votes accorded to him by the statutes; but he may not, in any case, use more than ten votes. ARTICLE 28. In all general meetings resolutions are passed by the majority of votes. A list of the members present is drawn up, containing their names and addresses and the number of shares held by each. This list, certified by the chairman of the meeting, must be deposited at the offices of the société, and be open to the inspection of all persons entitled to demand the same. ARTICLE 29. General meetings having to deal with matters other than those provided for in the two following Articles, must be composed of a number of shareholders, representing a quarter at least of the capital of the undertaking. If the general meeting does not fulfil this condition, a further meeting must be called, with the formalities and within the time mentioned in the statutes, and this latter meeting can pass valid resolutions, whatever may be the proportion of capital represented by the shareholders present. ARTICLE 30. Meetings for the purpose of approving contributions other than cash, of appointing the first directors, and of examining the deposition made by the promoters according to the terms of paragraph 2 of Article 24, must be composed of a number of shareholders representing one-half at least of the capital. The capital, of which the half must be represented for the approval of the “apport” shall be composed only of apports that do not require to be submitted to examination. If the general meeting is not composed of a number of shareholders representing one-half of the capital, it can only pass provisional resolutions. In this case a further meeting must be called. Two notices shall be published at eight days' interval, at least one month in advance, in one of the journals appointed for the insertion of legal advertisements, in order to advise the shareholders of the provisional resolutions passed at the first meeting, and these resolutions shall become final if they are confirmed by the new meeting, if composed of a number of shareholders representing one-fifth at least of the capital of the corporation. ARTICLE 31. Meetings which have to decide upon amendments to the statutes, or upon propositions to carry on the undertaking beyond the period fixed for its existence, or to dissolve the company before such term, are not regularly constituted and cannot pass valid resolutions, unless they are composed of a number of shareholders representing one-half at least of the capital. ARTICLE 32. The annual general meeting shall appoint one or more commissaires,” shareholders or otherwise, to prepare a report for the general meeting of the following year upon the financial condition of the corporation, the balance-sheet, and the accounts presented by the directors. A resolution approving the balance-sheet and accounts is void, unless it has been preceded by the report of the commissaires. In default of appointment of the commissaires by the general meeting, or in case of prevention or refusal of one or more of the commissaires appointed to act, the president of the Tribunal of Commerce of the principal office of the société shall proceed to appoint the same upon the petition of any party interested, the directors being duly convened. ARTICLE 33. During the three months preceding the period fixed by the statutes for the holding of the general meeting the commissaires have the right, whenever they deem it expedient in the interest of the société, to examine the books and investigate its operations. They can at any time, in case of urgency, call a general meeting. ARTICLE 34. Every Société anonyme shall draw up, every six months, a summary statement of its assets and liabilities. This statement shall be placed at the disposal of the commissaires. An inventory must also be drawn up every year, pursuant to Article 9 of the Code of Commerce, containing a list of the real and personal securities, and of all the assets and liabilities of the société. The inventory, the balance-sheet, and the account of profit and loss shall be handed to the commissaires four days at latest before the general meeting, and the same shall be presented to the meeting. ARTICLE 35. During fifteen days at least before the holding of the general meeting, every shareholder can inspect, at the principal office, the inventory and the list of shareholders, and obtain a copy of the balance-sheet containing a summary of the inventory, and of the report of the commissaires. ARTICLE 36. One twentieth, at least, of the nett profits must be set aside every year to form a reserve fund. The above deduction shall be no longer compulsory when the reserve fund amounts to one-tenth of the capital. ARTICLE 37. In case of the loss of three-fourths of the capital, the directors must call a general meeting of all the shareholders, to decide as to the expediency of winding up the company. The resolution of the meeting must, in every case, be made public. In case the directors fail to call a general meeting, and also in case it is not possible to obtain a quorum, any party interested can apply to the Court to dissolve the corporation. ARTICLE 38. The winding up may be ordered upon the petition of any party interested, when one year has elapsed since the date at which the number of members became reduced to less than seven. ARTICLE 39. Article 17 applies to Sociétés anonymes. ARTICLE 40. The directors are prohibited from receiving any interest, directly or indirectly, in any undertaking or transaction entered into by, with, or on account of the société, unless with the sanction of the general meeting. A special account must be rendered to the general meeting each year of the carrying out of the undertakings or transactions so authorised in the terms of the preceding paragraph. ARTICLE 41. Every Société anonyme which has not complied with the provisions of Articles 22, 23, 24, and 25 above mentioned, is void and of no effect as regards the members thereof. ARTICLE 42. When the Company has been dissolved, or the acts and resolutions thereof have been pronounced void, pursuant to the preceding Article, the promoters whose default has occasioned the same, and the directors in office at the time, are jointly and severally liable to third parties, without prejudice to the rights of the shareholders. The same liability attaches to these members whose “apports” or privileges have not been approved pursuant to Article 24. ARTICLE 43. The extent and effects of the liability of the commissaires to the société are determined according to the general rules legally applicable to agents. ARTICLE 44. The directors are liable, individually, or jointly and severally, to the société, or to third parties, according to the general rules of Law, either for infringements of the provisions of the present Law, or for faults committed by them in their management, especially for distributing, or allowing to be distributed, dividends that are fictitious. ARTICLE 45. The provisions of Articles 13, 14, 15 and 16 of the present Law apply to Sociétés anonymes, without distinction between those actually existing and those constituted pursuant to the present Law. Directors who, in the absence of an inventory, or by a false inventory, have distributed fictitious dividends, incur the penalties enacted by No. 3 of Article 15 relating to managers of Sociétes en commandite. The last three paragraphs of Article 10 are also applicable to Sociétés anonymes. ARTICLE 46. Sociétés anonymes which are in existence at the date of the present law, shall, for their entire duration, be subjected to the provisions which now govern them. They can be changed into Sociétés anonymes within the terms of the present Law by obtaining the authorisation of the Government, and complying with the forms prescribed for the modification of their statutes. ARTICLE 47. Limited Liability Companies can be converted into Sociétes anonymes within the terms of the present law, by conforming to the rules drawn up for the modification of their statutes. Articles 31, 37, and 40 of the Code of Commerce, and the Law of 23rd May, 1863, upon Limited Liability Companies are hereby repealed. TITLE III. SPECIAL PROVISIONS RELATING TO Sociétés WITH VARIABLE CAPITAL. ARTICLE 48. A stipulation can be made in the Statutes of every Société that the capital may be increased by successive payments made by the members, or by the admission of new shareholders, or be diminished by the total or partial withdrawal of the “apports” contributed. Sociétés whose statutes contain the above stipulation are subject to the following clauses irrespective of the general rules applicable to them according to their special constitution. ARTICLE 49. The capital shall not be fixed by the original statutes of the société at more than the sum of two hundred thousand francs. It may be increased by a resolution of a general meeting, year after year; each increase shall not exceed two hundred thousand francs. ARTICLE 50. The shares or share coupons shall be nominative, even when fully paid up; they cannot be less than fifty francs in value. They are not negotiable until after the definite constitution of the société. The negotiation of them can only take effect by means of transfers inscribed in the books of the société, and the statutes can give, either to the board or to the general meeting, the right to refuse such transfer. ARTICLE 51. The statutes shall fix an amount beneath which the capital must not be reduced by the withdrawal of the apports authorised by Article 48. The above amount must not be inferior to one-tenth of the capital. The société shall not be deemed definitely constituted until one-tenth be paid up. ARTICLE 52. Every member can retire from the société whenever he thinks fit, unless there are stipulations to the contrary, and unless such withdrawal would be in violation of Paragraph 1 of the preceding article. It may be stipulated that the general meeting shall have the right to decide by the majority fixed for the modification of the statutes, that one or more of the shareholders cease to belong to the société. A member ceasing to belong to the société, either by his own will or by decision of the general meeting, shall remain liable during five years to the shareholders and to third parties for all obligations entered into by him, and existing at the time of his withdrawal. ARTICLE 53. The société, whatever may be its form, may be legally represented in courts of law by the directors. ARTICLE 54. The société shall not be dissolved by the death, withdrawal, interdiction, bankruptcy or insolvency of one of the members; it remains undissolved as regards the other members. TITLE IV. PROVISIONS RELATING TO THE PUBLICATION OF THE ARTICLES OF ASSOCIATION. ARTICLE 55. Within a month from the constitution of any mercantile company or partnership, a duplicate of the deed constituting the same, if it be sous seing privé, or a copy if the document be a notarial deed, must be filed in the offices of the justice of the peace, or of the Tribunal de Commerce of the place in which the company or partnership is established. The following papers shall be annexed to the deed of constitution of sociétés en commandite par actions, and sociétés anonymes : 1. A copy of the notarial deed, setting forth the subscription of the capital and the payment of a fourth; 2. A certified copy of the resolutions passed at the general meeting in the cases provided for by Articles 4 and 24. Apart from the above, when the société is anonyme, a duly certified list of the names of the subscribers, including their christian and surnames, professions and addresses, and the number of shares held by them respectively, must also be annexed as above. ARTICLE 56. Within the same period of one month, an extract from the Articles of Association, and from the documents annexed thereto, must be advertised in one of the journals appointed for the publication of legal notices. A copy of the journal, certified by the printer and legalised by the mayor and registered within three months of its date, shall be evidence of such insertion. The formalities prescribed by the preceding and present Articles must be complied with, or they will be void as regards the members, but such default cannot affect the rights of third parties. ARTICLE 57. The extract must contain the names of the members other than the shareholders or commanditaires; the firm, name, or title of the société, and the address of the principal office; the names and offices of the members entrusted with the management, direction, and signature on behalf of the Société, the amount of capital and amount of securities or property brought in or to be brought in by the shareholders or commanditaires; the date when the société is to commence operations and the duration of the undertaking, and the date when the deposits were made as above at the offices of the justice of the peace and Tribunal of Commerce. ARTICLE 58. The extract must state whether the société is en nom collectif, or en commandite simple, or en commandite par actions, or anonyme, or d capital variable. If the société is anonyme, the extract must show the amount of the capital in cash or otherwise, and the proportion of profits to be set aside as a reserve fund. Lastly, if the société is d capital cariable, the extract must state the sum beneath which the capital cannot be reduced. ARTICLE 59. If the société possesses several branches in various districts, the deposit required by Article 55 and the publication prescribed by Article 56 must be made in each of the districts. In cities divided into several districts the deposit need only be made at the greffe of the justice of the peace of the district in which the principal office is situate. ARTICLE 60. The extract of the deeds and documents deposited must be signed by the notary in the case of notarial or “public deeds,” and in the case of deeds “sous seing privé" by the members “en nom collectif,” by the managers in “sociétés en commandite,” and by the directors in “sociétés anonymes.” ARTICLE 61. The following are subject to the formalities and to the penalties prescribed by Articles 55 and 56: All deeds and resolutions made with the object of modifying the statutes, continuing the société beyond the term fixed for its duration, dissolving the same before that period and fixing the mode of liquidation, all changes and retirements of members, and all changes in the firm, name or title. The resolutions passed in the cases provided for by Articles 19, 37, 46, 47 and 49 above appearing are also subject to the provisions of Articles 55 and 56. ARTICLE 62. Documents relating to the increase or diminution of the capital in the terms of Article 48, or to the retirement of members other than managers or directors, taking place pursuant to Article 52, are not subject to the formalities of deposit and publication. ARTICLE 63. In the case of “sociétés en commandite par actions,” or “sociétés anonymes,” any person has the right to inspect the documents deposited with the justice of peace and at the Tribunal of Commerce, or even at his own expense to receive copies or extracts from the officer of the court, or from the notary. All persons can also insist upon having delivered to them, at the principal office, a certified copy of the statutes, upon payment of a sum not exceeding one franc. The documents deposited must be posted up prominently in the offices of the soeiété. ARTICLE 64. In all deeds, invoices, advertisements, publications and other documents, printed or in writing issued by sociétés anonymes or by sociétés en commandite par actions, the title must be always preceded or followed immediately by the following words, plainly written in full characters, “société anonyme,” or “société en commandite par actions,” and by a statement of the amount of the capital. If the société has availed itself of the provisions of Article 48, this fact must be mentioned by the addition of the words, “d capital variable.” Any infringement of the preceding clauses is punished with a penalty of from fifty to one thousand francs. ARTICLE 65. The provisions of Articles 42, 43,44,45 and 46 of the Code of Commerce are hereby repealed. TITLE V. OF Tontines AND OF INSURANCE COMPANIES. ARTICLE 66. Associations formed under the Tontine system, or of the nature of mutual or premium Life Assurance Companies, remain subject to the authorisation and the inspection of Government. Other species of insurance companies can be formed without authorisation. A réglement d'administration publique shall determine the conditions under which they can be constituted. ARTICLE 67. Insurance companies, designated in Paragraph 2 of the preceding Article, which are in actual existence, can place themselves under the regime which will be established by the réglement d'administration publique, without the authorisation of the Government, upon observing the forms and conditions prescribed for the modification of their statutes.